KAILASH AND ANR. Vs. YASINA AND ORS.

JUDGEMENT

(1.) KAILASH son of Kishan, his mother Smt. Savitri has preferred the present revision petition. They are aggrieved against the order dated 7.9.2004 passed by Addl. Civil Judge (Sr. Division), Ferozepur Jhirka, whereby their application for amendment of the plaint was rejected. Petitioners herein had instituted a suit on 31.1.1996 for permanent injunction. Ad -interim injunction restraining the defendants from interfering in their peaceful possession over the suit land was granted and affirmed on 17.5.1996. On account of non appearance of the petitioner -plaintiffs and their counsel, the suit was dismissed in default on 7.12.1996. An application for restoration of the suit was filed by the petitioner -plaintiffs on 20.5.1996 and the case was restored at its original number on 14.8.1997.

(2.) THE case of the petitioner -plaintiffs is that after dismissal of the suit in default, defendant Nos. 1, 2 and 3 encroached upon the suit property and raised some construction by building walls and rooms on the suit property. The petitioner -plaintiffs projected that since construction had been raised by the defendants after institution of the suit, they are entitled to the relief of mandatory injunction and grant of prayer for demolition of walls and rooms built by defendant Nos. 1 to 3, therefore, a prayer had been made that they be allowed to amend the plaint by adding para 3 -A and amend para 8 of the plaint as per the details given in para 4 of the application for amendment. Respondent -defendants filed reply to the application. In the application so filed, preliminary objection regarding maintainability, mala fide, estoppel and misuse of process of law were pleaded. On merits, it was denied that they had encroached upon any part of the suit land. It was asserted that respondent -defendants are owners in possession of their own land and the petitioner -plaintiffs are not entitled to alleged relief of mandatory injunction, therefore, their application for amendment of the plaint is liable to be rejected. It was urged that by proposed amendment, petitioner -plaintiffs intend to change very nature of the suit.

(3.) MR . Naresh Prabhakar, learned Counsel appearing for the petitioner -plaintiffs has relied upon Ragu Thilak D. John v. S. Rayappan and Ors. : A.I.R. 2001 S.C. 699 and has canvassed that for allowing amendment, the Court should adopt liberal approach in order to minimize the litigation. Paragraphs 5 and 6 in Ragu Thilak D. John's case (supra) relied upon by the learned Counsel read as under: