HANS SETHI Vs. SEWA SAMITI

JUDGEMENT

(1.) This petition is directed against the order of the trial Court dated 5.5.1990 whereby an application seeking amendment of plaint was declined. The plaintiff filed a suit for permanent injunction alleging that he was a tenant in the shop in dispute under the defendant and, therefore, the defendants be restrained from interfering in this peaceful possession. During the pendency of the suit, the plaintiff moved an application, that in spite of the ad interim injunction granted in his favour he was dispossessed. The plaintiff, therefore, moved an application for amendment of the plaint to claim the relief of mandatory injunction and get and the possession of the disputed premises restored to him. This application was contested on behalf of the defendants. The trail Court took a view that since the plaintiff was aware of his dispossession in the year 1984 when he was dispossessed from the premises in dispute and negligence on the part of the plaintiff for nor applying for amendment of the plaint for the last about six years creates compelling circumstances to dismiss his application.

(2.) At the time of motion hearing, it was contended that the only amendment being sought was of changing the prayer clause from 'permanent injunction' to 'mandatory injunction' and there was no mala fide.

(3.) The mere fact that the application was delayed one was no ground to dismiss the same. If the petitioner had proved that he was dispossessed during the pendency of the suit, he was entitled to the relief of mandatory injunction sought for. It would have avioded the multiplicity of proceedings and determined the real controversy between the parties. Under these circumstances the application for amendment of plaint could be allowed on payment of cost. The trial Court has, thus acted illegally and with material regularities in the exercise of its jurisdiction. Consequently this petition succeeds; the impugned order is set aside the plaintiff's application for amendment of plaint, as indicated above, is allowed subject to payment of Rs. 300/- as cost. However, in case the parties are to lead any evidence, it is made clear that only one opportunity be given to each party for that purpose and that too at their own responsibility.