SHASHI PAL SHARMA Vs. TILAK RAJ

JUDGEMENT

(1.) Petitioner (hereinafter to be referred as 'plaintiff' filed suit for mandatory injunction in the Court of learned District Judge Kathua against the respondent (hereinafter to be referred as 'defendant') seeking direction to him to execute Sale Deed in respect of land measuring 10 kanals in khasra No. 306/159 and 04 kanals in khasra No. 307/159 situated in village Kothi, Kathua and get the same registered in favour of the plaintiff with further relief of permanent injunction restraining the defendant from causing any interference in the suit land by any manner/mode, whatsoever either himself or through anybody else. Further prayer was that the defendant be restrained from selling the suit land to anybody else. The total sale consideration was Rupees four lacs and twenty thousand for which the defendant had executed an Agreement to Sell in favour of the plaintiff on 14.11.2007 duly attested by Notary Public at Kathua. The said suit is presently on the file of learned Munsiff Kathua. The defendant filed written statement to the main suit and thereafter,, as many as seven issues were framed. The plaintiff thereafter moved an application under Order 6 Rule 17 read with Section 151 CPC seeking amendment of the plaint on the ground that he intended to amend the subject part and the prayer part of the plaint to up-to-date the plaint technically, inasmuch as the plaint to be read as 'suit for specific performance of agreement to sell' made and executed by the parties on 14.11.2007 and notarized by the Notary Public Kathua on the same day, directing the defendant to make and execute the sale deed of the aforesaid land and get the same registered by the competent Registering Authority and also with a further relief for permanent injunction restraining the defendant from causing any interference in the suit land by any manner/mode whatsoever, either himself or through anybody else and also from alienating or transferring by any mode including all rights therein as also from disturbing the plaintiff's possession over the aforesaid land in any manner by any mode either himself or through anybody else. He sought the amendment of the prayer part accordingly.

(2.) The amendment sought was opposed by the defendant on the plea that the proposed amendment, if allowed, would change the basic nature of the suit entirely and will also alter the cause of action which would cause prejudice to the defendant. Apart from that, the application was resisted on the ground that it is filed after the lapse of more than five years when the case was fixed for arguments on preliminary issue regarding maintainability of the suit on which the onus was on the defendant. The other objection was that if the proposed amendment is allowed, it will take the jurisdiction of the Court also.

(3.) Learned Munsiff ultimately dismissed the application of the plaintiff vide impugned order dated 19.08.2013. Hence, the instant petition by the plaintiff under section 104 of Constitution of J&K and Article 227 of Constitution of India seeking supervisory powers of this Court.