RASOOL Vs. HAJI USMAN

JUDGEMENT

(1.) Sub Judge (CJM) Kargil vide his order of May 15, 1996 allowed amendment of plaint in civil suit titled Mohammad and Ors v. Rustum and others No.13 of 1986 on the file of Sub-Judge (CJM s) court Kargil, so as to correctly describe the alleged source water flow to Plaintiff s land from spring Yakus instead of spring Dasus and further to mention survey Nos. of such land irrigated from flowing water of Yakus spring, besides describing on spot lands of defendants being allegedly irrigated by flowing water of Nala Khurboo(as shown in Bundaubaste Vasil Apashie.) Respondents counsel failed to appear on the last date on 13.12.2000 when the counsel for the petitioner was heard. The impugned order is under challenge, as given in the revision memo and canvased by the counsel on the grounds that by allowing the application and the proposed amendment, nature of suit and cause of action therefor is changed. The rights of defendants to use water from Yakus Cheshma is taken away. It is not the case of typographical error and in fact under the garb of the amendment. fresh suit is allowed.

(2.) Respondents to this revision and plaintiff before the trial court have filed the suit for declaration and injunction in respect of their pleaded right to use water of the spring by prescription and under custom, to the exclusion of all others including the defendants and to restrain the defendants from taking and using the water of the spring and for a further declaration that the orders passed in conflict with the above prayed relief for declaration and injunction are, non est. The plaintiff had filed a suit earlier which was permitted to be withdrawn with liberty to file fresh suit. The amendment prayed for stands allowed by the trial court on the ground that instead of mentioning Yakus Cheshma due to clerical mistake the spring has been described as Dasus Cheshma. The reason there for being conflicting and confusing revenue extracts issued by the revenue authorities and neglect and erroneous descriptions by their counsel. The trial court has also found that the lands alleged to be irrigated by the water of the cheshma are sought to be described by reference to correct survey Nos. irrespective of vasila Apashie entries from Yakus spring on spot. The other ground pressed in service for amendment is that the proforma defendants have made admission of plaintiffs suit, therefore, the plaintiffs are within their rights to rely on and plead this admission. The defendants/revision petitioners resisted the motion on the ground that the application for amendment is misconceived belated and filed with malafides with a view to defeat the rights of the defendants. If the amendment is allowed, it would change the nature of the suit and introduce a new case. Even, nature of the suit is likely to be altered.

(3.) The learned trial judge has examined the matter within conspectus of order VI Rule 17 C.P.C and in its discretion allowed the amendment after noting that the amendment is not to change nature of the suit and instead the real controversy between the parties is focused by the amendment. By mentioning the survey Nos. of the lands dependent on the Cheshma for irrigation. The erroneous description of the property would be rectified. Merely because the amendment has been made at a late stage. Same cannot be a ground perse to throw away the proposed amendment and turn down the prayer. Neither the cause of action nor the nature of the suit is changed. By the proposed amendment property is correctly described.