SOHAN LAL Vs. RATTAN LAL

JUDGEMENT

(1.) This revision has arisen out of the refusal of the trial Court to allow amendment of the plaint. This plaint as originally brought, was that the plaintiff had bought a shop which was on rent with the defendants. The adjoining house already belonged to the plaintiff. Thus, the plaintiff became the owner of this adjoining shop also and he wanted to construct a Chaubara on the shop. He filed a suit claiming that as an owner in possession of the roof of the shop, he was entitled to raise construction of the Chaubara thereon for his own use and that he was being prevented by the defendants. He, therefore, asked for a mandatory injunction preventing the defendants from interfering in his construction of the Chaubara and its enjoyment. He obtained a temporary injunction on the last working day, i.e., 31st August, 1971, before the September vacation. Against this order, the defendants moved the District Judge and got the order properly amended. The plea taken by the defendants was that they had the possession of the roof and, in fact, the stairs to the roof went from inside the shop.

(2.) Seeing that the possession of the shop is being questioned, the plaintiff put in an application for amendment of the plaint claiming a declaration that he was entitled to the possession of the roof of the shop and as a consequential relief to be given the possession so that he could construct a Chaubara and enjoy the roof. Apparently, the plaintiff had also filed an ejectment application. Copy of that application was produced by the defendants while opposing this application for amendment of the plaint, because in the ejectment application the plea taken was that the shop was required for demolition. The learned trial Court declined to allow the amendment feeling that a new case was being set up and hence this revision.

(3.) It is now well settled by a number of pronouncements of their Lordships of the Supreme Court that an amendment, in order to settle the real issues between the parties, should be allowed even if the application for amendment is made at a late stage, provided the other party has not acquired any right. In other words, if another suit claiming the relief and making the allegations, as would have been made in the amendment application, would not be barred by time and the point raised is the point of dispute between the parties then in order to avoid multiplicity of proceedings, such an amendment should be allowed.