TARANJIT KAUR Vs. NAVNEET KAUR

JUDGEMENT

(1.) THE plaintiffs have filed the instant petition under Article 227 of the Constitution of India for setting aside the order dated 2.9.2004 passed by the Civil Judge (Jr. Division), Amritsar, whereby their application under Order 6 Rule 17 CPC for amendment of the plaint has been dismissed. By the proposed amendment, the petitioners want to incorporate the alternative prayer regarding possession.

(2.) IN this case, the petitioners purchased the plot in question measuring 900 sq. yard from defendants No. 4 to 6 vide registered sale deed dated 15.11.1989. Subsequently, those defendants executed sale deed dated 16.11.1989 regarding the plot in question in favour of defendant No. 7. Thereafter, defendant No. 7 sold the same plot with some variations in area to defendants Nos. 1 to 3 vide registered sale deed dated 2.11.1992. Therefore, the plaintiff-petitioners filed a suit for declaration to the effect that they are owners in possession of the suit land as well as permanent injunction restraining the defendants from interfering into their peaceful possession and from making construction over the plot in question. The application filed by the petitioner under Order 39 Rules 1 and 2 CPC for interim injunction against the defendants was dismissed by the trial Court after prima-facie finding that the plaintiffs are not in possession of the plot in question. Thereafter, in view of the said situation, the plaintiffs filed the instant application for amendment of the plaint to incorporate the alternative relief of possession in the plaint. The said application has been dismissed by the impugned order on the ground that the application for amendment of the plaint was filed after a delay of about four years.

(3.) IT is well settled that where the plaintiff is found to be out of possession and the suit was not in proper form, and, therefore, not maintainable for the reasons that the plaintiff had not asked for possession, the suit is not to be dismissed but the plaintiff is to be given an opportunity to amend the plaint and bring it in proper form. It is a duty caused on the Court to grant an opportunity to the plaintiff to bring the suit in the proper form even at the fag end of the trial. In this regard, counsel for the petitioners relied upon the decision of this Court in Baljit Singh v. Jot Ram, 1994(3) RRR 274 : 1994(3) PLR 261. Similar principle was reiterated in Jeet Singh alias Ranjit Singh v. Baboo Singh (died) by LR and another, 1997(3) RCR(Civil) 676 : 1997(2) PLJ 157. I am of the opinion that merely on the ground of delay, the proposed amendment in the plaint for taking the alternative relief of possession cannot be denied. By making the said amendment, neither the cause of action nor the nature of the suit will change. If the plaintiffs have not claimed the proper relief in the plaint, then their suit is not be dismissed on this ground alone and the opportunity has to be given to the plaintiffs to amend the plaint to seek proper relief. In view of this, I am of the opinion that the impugned order dated 2.9.2004 passed by the Civil Judge (Jr. Division), Amritsar is not sustainable and the same is hereby set aside. The application of the petitioners for amendment is allowed. The trial Court is directed to permit the petitioners to amend the plaint.