SUSHILA PAHADE Vs. SANJAY PAHADE

JUDGEMENT

(1.) IN this civil revision preferred under Section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code') the plaintiffs/applicants have called in question the sustainability of the order dated 5.4.1999 passed by the learned Illrd Civil Judge Class -II, Chhindwara in Civil Suit No. 236 -A/98 whereby he has rejected the application made under Order VI Rule 17 of the Code by the plaintiffs.

(2.) THE facts as have been unfolded are that the applicants as plaintiffs instituted the aforesaid civil suit for grant of permanent injunction. During the pendency of the suit, as alleged, the defendants/non -applicants caused damages to the suit property. As the cause of action arose during the pendency of the suit, the plaintiffs filed an application for amendment praying for title and damages. The learned trial Judge rejected the said application on the ground that there has been delay in filing the application and that apart if the amendment is permitted to be incorporated it would change the nature and character of the suit.

(3.) TO appreciate the submission raised by the learned counsel for the applicants I have carefully perused the impugned order passed by the Court below. The learned counsel has taken me through the application for amendment and the objection raised by the non - applicants. The amendment sought for by the plaintiffs related to the occurrence that took place during the pendency of the suit. As the damages have been caused the plaintiffs/applicants by way of amendment have claimed for the same. It has also been pleaded that the non -applicants have encroached upon certain area of the plaintiffs for which they are compelled to file the application for amendment. As the plaintiffs have been dispossessed they have prayed for recovery of possession. It also appears from the impugned order that the counsel for the applicants have very fairly stated that if the amendments are permitted to be incorporated the plaintiffs would pay the requisite court fees. On a scrutiny of the impugned order it appears that the learned trial Judge has been swayed away by the delay caused in filing the application and has observed that the amendment would change the nature and character of the suit. On a close scrutiny of the impugned order I am of the considered opinion that the learned trial Judge has erroneously opined that the amendment would change the nature and character of the suit. It is to be borne in mind that the subsequent events can be brought by way of an amendment, and in the present case, precisely that has happened. In view of the subsequent events the plaintiffs sought for amendment, and hence, no fault can be found with it. In the obtaining factual matrix it can safely be concluded that the learned trial Judge has fallen into grave error by rejecting the prayer for amendment. The order of learned trial Judge does not with -stand close scrutiny and is liable to be lanceted in exercise of revisional jurisdiction, and accordingly I so do.