SHUGAN Vs. RATTNA

JUDGEMENT

(1.) Admitted. To be disposed of simultaneously.

(2.) This is a petition for revision against an order of Shri Inderjit Mehta, Sub-Judge, III Class, Panipat, whereby in a suit for permanent injunction he refused the plaintiff the amendment asked for. The amendment to the plaint sought was that in the presence of an interim order of status quo, the defendants had constructed a wall, whereby reason had arisen to amend the plaint by inserting the necessary allegation supported by plan revealing the existing situation. And as a sequel thereto, the suit was being converted to one for mandatory injunction for removal of the wall raised during the pendency of the suit. This prayer was resisted tooth and nail. The learned trial Judge took the view that in the site plan filed by the plaintiffs with the application for amendment, there was no wall shown with letters HIC or letters EFB and secondly if there had been any construction of the alleged wall the plaintiff should have moved the application much earlier. On this score the prayer was declined.

(3.) Challenge to the order has been made on the ground that the learned trial Judge has taken a hypertechnical view of the matter and in support thereof a certified copy of the application for amendment has been placed on the record to show the way in which the matter has been dealt with. It is patent therefrom that the plaintiffs had in paragraph 3A (i) of the application alleged that the newly raised wall as shown in the site plan is HIC, whereas in the prayer clause mentioned in sub-para (iii) the wall has been described as EFB. The appended plan shows that EFB are well demarked points whereas HIC are not. Learned counsel for the petitioners contended that this error in para 3A(i) had crept in due to a typographical mistake and was just an accidental slip of misdescription. He is emphatic that the relief sought is towards the wall constructed at points EFB shown on the plan. If that is so, as has been stated by the learned counsel for the petitioners, the learned trial Judge should have ignored the discrepancy and at best asked for a correct petition removing the typographical error or the accidental slip. with regard to delay, it is pertinent to note that the plaintiffs filed the suit on September 13, 1984, the wall in question was raised on October 29, 1984, the written statement was filed on November 17, 1984 and the application for amendment was made on February 12, 1985, within 3-1/2 months of the alleged construction. In this situation, it could hardly be said that there was any delay in seeking the amendment. The proceedings in the suit were at the initial stages and no valuable right stood accrued to the defendants by any suggested delay. Thus, the order of the learned trial Judge was materially irregular in the exercise of jurisdiction, requiring CORRECTION at this end. This is so despite the tough opposition given to the petition by the learned counsel for the respondent on the ground that the amendment sought is mala fide, without being able to point out anything which would justify the employment of such an allegation. Thus, the impugned order is upset and the application of the plaintiffs is allowed, permitting the plaintiffs to correct the typogrophical error in paragraph 3A(i) of the application. Of course the amended plaint would be in accordance with the amended application. In view of the needless tough opposition, the defendants shall be paid token costs of Rs. 10 at the time when the amended plaint is filed.