JAGAJEEVAN PANIGRAHI Vs. GELALA SOMAYYA

JUDGEMENT

(1.) Heard both the Counsel.

(2.) The petitioners are the plaintiffs. It is stated that the petitioners havepreferred O.S. No.152/81 on the file of the District Munsif's Court, Sompeta, for perpetual injunction against the 'respondent in respect of open space. The suit filed by the plaintiffs was dismissed holding that the respondent- defendant is in possession of the property. It is stated that an appeal in A.S. No.7/89 on the file of the Subordinate Judge, Sompeta was preferred. During the pendency of the appeal, the petitioners have filed LA. No.463/94 on 4-11-1994 under Order 6 Rule 17 C.P.C. to grant permission for the amendment of the plaint. By the amendment of the plaint, the petitioners sought recovery of possession of the plaint schedule property in the event the Court comes to conclusion that the plaintiffs are not in possession and enjoyment of the plaint schedule property. The respondent resisted the amendment petition on the ground that the petition is not maintainable at that stage and the proposed amendment will alter the nature and scope of the suit and also cause prejudice to the respondent.

(3.) The learned Subordinate Judge, considered the principle laid down in C. Venkataramana Reddy vs. N. Rajamma to the effect that "the general principle is that the power to grant amendment, the pleadings being intended to serve the ends of justice is not to be narrowly construed and should be liberally exercised unless the amendment sought would change the nature of the suit", and the scope of the suit, held that the cause of action changes if proposed amendment is permitted. He has observed that the suit was filed for mere injunction and there is no averment that from what date or time, the defendant is in unlawful possession of the property and therefore, the cause of action in a suit for recovery of possession would be different from the suit for mere injunction, and further the amendment is sought after 14 years after filing of the suit.