ASSAD SHAH Vs. AHMAD WANI

JUDGEMENT

(1.) THE defendant is the revision petition in this case. The respondent brought a suit for temporary injunction against the petitioner alleging that they were in possession of the suit land and that the defendant may be permanently restrained from interfering with their possession. They also prayed for an -ad -interim injunction restraining the petitioner from interfering with their possession till the final disposal of the suit. Aggrieved by this order of temporary injunction the petitioner challenged the same in appeal before District Judge at Baramulla who relying upon same earlier compromise between the parties modified the same and ordered that the parties shall maintain statues -que on the spot. The learned District Judge passed his order on a tentative finding that the parties were in joint possession of the land even on the date of the suit. The learned District Judge went further to appoint a Commissioner to go on spot and partition the property between the parties by metes and bounds. This order was challenged by the petitioner before the High Court in a revision petition but the High Court modified the order of the learned District Judge in part and to the extent only that no Commissioner would be appointed to partition the property by metes and bounds between the parties. It, however, maintained the other finding of the learned District Judge that the property being in the joint possession of the parties an order restraining the petitioner from interfering with the possession of the respondents could be passed and had been rightly modified by the learned District Judge. In the meantime, it appears, the plaintiff died and his legal representatives, the present respondents were substituted for him. The respondents started leading their evidence while their evidence was on they on 15th of October 1980 moved an application for amendment of the plaint, seeking to convert the suit for injunction is one for possession. This application was resisted by the petitioner inter all on the ground that the respondents not being in possession of the suit land even on the date of suit, the application for amendment was not bonafide. This contention was over -ruled by the trial court namely, Sub Judge (C.J.M.) Handwara, who eventually allowed the amendment sought for by virtue of his order impugned in the revision petition. Today I have heard the learned counsel for the parties and I also have gone through the record.

(2.) ONE of the grounds upon which the amendment may be disallowed is where the court finds that the application for amendment is not bonafide. In the instant case, the petitioners contention is that the prayer for amendment is not bonafide because the respondents to their own knowledge were in possession of the suit property on the date of the institution of the suit itself. That in such a case the amendment ought to have been refused has not been disputed even by the trial court as an abstract principle of law. On the other hand the prayer has been allowed on the ground that the respondents had been dispossessed during the pendency of the suit. In my opinion, the trial court was not justified in arriving at this finding. The original application amendment made on 15th of October 1980 nowhere states that the respondents had been dispossessed during the pendency of the suit. This lacuna in the application was sought to filled up by another application which was made by them right on the day when the impugned order come to be passed. That apart, the history of the litigation between the parties clearly indicates that the parties were in joint possession of the property even on the date the suit was instituted The trial court was not, therefore, justified in ignoring these facts and the findings, even though tentative, recorded by the learned District Judge and upheld by this court.

(3.) MR . Raina relying upon A. I. R. 1973 Delhi 96 contended that whether or not the respondents had been dis -possessed during the pendency of the suit was a question which could be considered only after the amendment was allowed and not before allowing the same as to refuse amendment on the ground that the plaintiffs were not in possession of the suit property on the date the suit came to be instituted would tantamount to pre -judging their case. In my opinion reliance placed upon by the learned counsel is clearly misplaced. It is true, that the court while allowing the amendment cannot go into the merits of the plea sought to be raised there by, but it is equally true that the court in order to judge whether the prayer for amendment is malafide or bonafide must determine the facts, even though tentatively that would go to show whether the prayer made is bona fide or other wise. This would be amply borne out if we examine the matter a little more closely. If the amendment were to be allowed and the trial court subsequently found that the respondents were not in possession of the suit property, when the suit originally came to be filed when it would be powerless to annual the amendment once it had allowed the same. Furthermore, whether or not the respondents were dis -possessed during the pendency of the suit has nothing to do with the merits of the plea as to whether or not the respondents are entitled to a decree for possession. In order to determine this right, they on their own pleading shall have to prove firstly that they are the owners of the land, and secondly that they were in possession of it at any time within twelve years before the institution of the suit. Once these two facts are proved by them, nothing will come in their way in obtaining a decree for possession.