MUKHTIARA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE amendment of the plaint as sought by the petitioner is declined by the trial Court and the same is impugned through the present revision petition.

(2.) THE petitioner had filed a suit for permanent injunction claiming that property in dispute was mortgaged to him before partition and since the mortgage has not been redeemed, the petitioner has become owner in possession of the property. Subsequently, respondent No. 3 was also added as a party and he has filed a written statement. The parties have led evidence in the suit and it was fixed for argument and rebuttal when the petitioner moved an application seeking amendment for taking up me plea of adverse possession. He now wants to amend the plaint to say that he is in possession and the same has become adverse and hostile and thus it has ripened into ownership due to lapse of time. The amendment as sought has been opposed on the ground of maintainability of the application as well as on the ground of delay in making such a move to seek amendment. The trial Court has declined the prayer of the petitioner on the ground that the trial has commenced long ago and the proposed amendment was within the knowledge of the petitioner and thus this amendment cannot be allowed at this belated stage. It is further noticed that it is a simple suit for injunction which the petitioner had filed to seek protection of his possession and no declaration was sought. By way of amendment, the petitioner in fact was seeking declaration from the court about he being owner of the suit property by way of adverse possession and hence it amounted to changing the nature of the suit and cause of action.

(3.) THE counsel for the petitioner took time to make submissions in this regard. The counsel for the petitioner would dispute this proposition of law as laid down in Bhim Singh and others v. Zile Singh and others, 2006(3) RCR(Civil) 97 : (2006-3)144 PLR 159 and has referred to certain judgments in support of his plea. Mr. Palli, on the other hand, submits that the amendment as sought need not be tested on that ground and cannot be allowed simply because amendment as sought would not be within the purview of Order 6 Rule 17 CPC. According to Mr. Palli, the petitioner by moving this application for amendment is wanting to introduce entirely different cause of action and he cannot be allowed to substitute this present cause for a cause as originally pleaded in the suit. In support of his submission, Mr. Palli has referred to State of A.P. and others v. M/s. Pioneer Builders, 2007(1) RCR(Civil) 240 : 2007(1) RCR(Rent) 1 : 2007(1) RAJ 249 : 2006(4) Civil Court Cases 668. It is observed in this case that one distinct cause of action cannot be substituted for another nor the subject matter of a suit can be changed by way of an amendment.