MUSHTAQ AHMAD DHAR Vs. NAZIR AHMAD DHAR

JUDGEMENT

(1.) Respondent No.1 has filed a suit against petitioners and other respondents for declaration and injunction in respect of property, business conducted by the business concerns/ firms, land and structures and hotel business of Hotel Pamposh Regal Chowk Srinagar ( referred in detail in paras 3 and 4 of plaint and in amended plaint in paras 3, 3A and 4) on grounds averred in the Plaint .The suit is hotly contested by the Revision Petitioners/ defendants to the Suit. Plaintiff and the two defendants are brothers. The suit is instituted in 1997.The suit was scheduled to be taken for hearing on three preliminary issues, the defendants first filed application for amendment of the written statement followed by two applications, one after another by plaintiff for amendment of the plaint. Under directions of the court, the proposed amended plaint was also filed.

(2.) The trial court of Addl. District Judge Srinagar after hearing the parties allowed the amendment on payment of costs of Rs.5000/-. This order dated 7.7.2003 is under challenge in this revision petition. The submissions of the Ld. counsel for petitioner is that by the proposed amendment, plaintiff is seeking interalia to sue for declaration that he be declared owner entitled to 50% share of M/S Dhar Brothers Corporation Chemicals, Saboon Kocha, Zanakadal Srinagar and M/S Dhar Brothers Corporation, Kashmir Art Palce, Dhar Complex Hari Singh High Street Srinagar, when in respect of these two concerns and property thereof and the shares claimed therein, the plaintiff has omitted to put forth his claim in the original plaint. The claim as also the relief put forth at this stage by prayed amendment is barred by Order 2, Rule 2 C.P.C. Additionally claim is also time barred, therefore, the amendment could not have been allowed by allowing the amendment jurisdictional error is committed by the trial court.

(3.) The Ld. counsel for plaintiff -respondent No.1 in reply contends that the matter is not covered by Order 2, Rule 2 C.P.C, as plaintiff respondent has at no stage relinquished or omitted the claim or the relief prayed for. By the amendment the properties have been fully and in detail described and identified, so as to get decision on issue(s) central to the suit and complete and effective determination of the suit. It is to avoid multiplicity of the litigation that the two property are brought in to seek comprehensive decision from the court in respect of all the properties and claim put forth by the plaintiff against his brothers contesting defendadnts.