JANGI RAM Vs. JOGI RAM

JUDGEMENT

(1.) Vide order, under challenge, application of the respondents, to amend their plaint, was granted by the trial Court. It is not in dispute that the suit was filed in the year 1998. It is further admitted by the parties that in that suit, parties were directed to maintain status quo vide order dated 23.12.1995. Thereafter, admittedly, one application was moved by the respondents, under Order 39 Rule 2A of CPC, on the ground that as the petitioner has dismantled the water course, so he has violated the status quo order passed on 3.1.1996, prayer was made to take suitable action against him. That application was dismissed. Immediately, when that order, was violated, no attempt was made to get the plaint amended. Application to amend plaint was filed in the year 2003, wherein, it was prayed that the respondents be allowed to pray for issuance of decree for mandatory injunction, to direct the petitioner to restore water course, in its original position, which was dismantled on 3.1.1996. Without giving finding, as to whether at this belated stage, suit for mandatory injunction was competent or not, amendment was allowed.

(2.) Counsel for the petitioner has placed reliance upon judgment of the Hon'ble Supreme Court in Muni Lal v. The Oriental Fire & General Insurance Co. Ltd. & anr., 1996(1) Civil Court Cases 467 (S.C.), to contend that if the relief claimed is bared by limitation, trial Court was not justified to allow the amendment. It is apparent from the records that the alleged violation i.e. dismantling of the water course was done on 3.1.1996. Application for amendment has been filed after about 7 years of the same.

(3.) This Court feels that the relief, now claimed, is palpably time bared. Under these circumstances, the Court below was not justified to allow amendment of the plaint, as it would be a futile exercise, ultimately, no relief could be granted to the respondents. Reliance of counsel for the respondents on the ratio of the judgment in Sampath Kumar v. Ayyakannu and another (2002)7 Supreme Court Cases 559, to the contrary, is not justified, as in that case, trial Court, while dismissing application for amendment, has specifically held that the petitioner therein, was entitled to file a separate suit. In view of facts referred to above, this revision petition is allowed, order, under challenge, is set aside and consequently, the application for amendment also stands dismissed.