MOHAMMAD AMIN DAR Vs. GAJINDER SINGH

JUDGEMENT

(1.) The petitioner through the medium of Civil Revision Petition calls a question on order of 1st. Additional Munsiff Srinagar dated 16-2-2010 in suit tilted Gajinder Singh Maan v. Mohammad Amin Dar (file No. 53/No) whereby the Trial Court has allowed an application under Order 6, Rule 17 Civil Procedure Code and permitted the respondent to amend the plaint. The facts relevant to the present controversy are as under:

(2.) The respondent filed a suit for grant of permanent injunction decree perpetually restraining the petitioner and his agents from interfering with respondent's possession over the suit property detailed in the plaint. The respondent also prayed for a similar decree restraining the petitioner from forcibly and illegally dispossessing the respondent from the suit property. The petitioner on the other hand also filed a suit for grant of permanent injunction decree restraining the respondent from interfering with the petitioners possession over the same property that formed subject-matter of the suit instituted by the respondent. The case set up by the petitioner in his suit was that the petitioner had purchased the suit property from duly authorized attorney of the owner of the property vide Sale Deed executed on 8th April, 2009 and registered on 10th April, 2009. In other words the petitioner based his claim over the suit property on the Power of Attorney executed by the owner of the suit property in favour of his attorney inter alia authorizing him to sell/transfer the said property on his behalf and the subsequent Sale Deed executed by the said duly appointed authorized attorney in favour of the petitioner. The respondent after acquiring knowledge regarding the Power of Attorney and Sale Deed in question filed an application under Order 6, Rule 17, CPC before the Trial Court for according permission to amend the plaint. The case set up by the respondents was that the respondent having become aware of the aforementioned two documents where-under a claim to the suit property was set up by the petitioner, intended to assail the documents as being without right or authority and thus of no legal consequence. The respondent wanted to mould the relief clause accordingly and in addition to permanent injunction decree seek a declaratory decree declaring the Power of Attorney dated 13-2-2009, and Sale Deed dated 8th April, 2009 registered on 10th April, 2009 as null and void, non-est in the eye of law and not binding on the respondent,

(3.) The application for grant of permission to amend the plaint was resisted by the petitioner primarily on the grounds that the amendment was likely to enable the respondent to introduce a new case and set up a new cause of action. It was pleaded that the amendment if allowed was likely to bring the suit out of pecuniary jurisdiction of the trial Court and the trial Court thus lacked the jurisdiction to allow the proposed amendment. The trial Court on going through the application under Order 6, Rule 17, CPC, objections filed by the petitioner and after hearing the counsel for the parties allowed the application and permitted the respondent to amend the plaint as proposed in the application. Learned trial Court was of the view that the proposed amendment was not to change the nature of the suit or help the respondent to introduce a new case. The application was allowed subject to payment of Rs. 1000/- as costs. The order dated 16-2-2010 allowing the amendment application is assailed on the grounds that the respondent by amending the plaint in the manner proposed in the application was in fact allowed to convert an injunction suit simpliciter into a suit for declaration, a course not permissible under law. The trial Court having regard to the fall-out of the proposed amendment, according to the petitioner ought to have returned the plaint to the respondent for its presentation before the Court of competent jurisdiction. The amendment allowed by the trial Court is said to fall outside the ambit of Order 6 to Rule 17 and thus not permissible under law.