KRISHNADEO PATHAK Vs. HEMLATA CHOUDHARY

JUDGEMENT

(1.) The present application has been filed by the plaintiff petitioner whose application under Order 6, Rule 17 read with Section 151 of CPC for amendment of plaint seeking additional relief has been rejected by the trial Court. The opposite party, pursuant to notice, has appeared and resisted the application. With consent of parties, this application is being heard and disposed of at the stage of admission itself.

(2.) On behalf of plaintiffs-petitioners, it is submitted that they had filed a suit for declaration of title over Schedule II lands and for a further declaration that the order dated 18-11-1991 passed by the Anchal Adhikari and that passed by the OCLR had no binding effect on the title and possession of the plaintiffs. By the amendment what was sought for was a declaration that the plaintiffs were in possession and confirmation of their possession over the suit lands. The trial Court rejected the amendment application on two grounds firstly that the relief as sought for with regard to declaration of possession and confirmation of possession amounted to a new relief which would change the nature of the case and secondly that evidence having been closed, the amendment could not be permitted in view of Order 8, Rule 17 proviso as substituted by CPC Amendment Act 2002. It is the correctness of the two findings for refusing to exercise jurisdiction that is the question.

(3.) On behalf of plaintiff, my attention has been drawn to the issues as proposed and issues as settled. A reference to that would show that the question of possession of the plaintiff was in issue. Therefore, it is clear that both the parties entered the litigation or participated in the trial knowing fully well that one of the issues was the question of possession of the plaintiff. That being so, the Court was automatically required to go into the question of possession. Parties are not being taken by surprise. They had prior notice. They went to trial. Now the question is only of a relief which is closely associated with the issue so formulated. In that view of the matter, I am of the view that the trial Judge was wrong in saying that a new case is made out. In my view, such a relief was consequential to the finding on the issue of possession.