DEVIDAN Vs. PANIA

JUDGEMENT

(1.) This is an appeal against the order of the Commissioner, Jodhpur dated 31.3.59. We have beard the learned counsel for the parties and examined the record also. The learned Commissioner has reversed the order of the learned Asstt. Collector Sojat dated 23.9.56 allowing the amendment of the plaint by adding a further prayer for possession to the original prayer for injunction alone and rejected the application for amendment on the following grounds: - -

(2.) The learned S.D.O. trying the suit had allowed the amendment with the following observations : "In this connection I am very much convinced by the judgment given in Mst. Dedri vs. Mst. Khatji and another as cited in AIR 1954 J. & K. 63 and referred to by the counsel for plaintiffs, the facts of which are too much similar with that of the present suit. It was held the main object of the amendments is to get at the rights of the parties and to avoid multiplicity of suits. But there is one condition, and that is that it should be possible to settle the dispute in the suit already instituted without unfairness or injustice to the opposite parties." It was further held in the very case, In a suit for permanent injunction to restrain the defendants from interfering in the plaintiffs possession and application for seeking permission to amend the plaint was made stating that the defendants took forcible possession of the land in dispute during the pendency of the suit and the plaintiff be permitted to seek further relief of possession. The defendants resisted it on the ground that it would change the nature of the suit; held that if the amendment was allowed, it would mean that the plaintiff should bring another suit. Such a state of affairs could be easily avoided by an amendment. It should therefore be allowed. "The judgment as cited in AIR 1954 Nagpur p. 200 and referred to by the counsel of the plaintiff I know of no kind of error or mistake which if not fraudulent or intended to over reach, the court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding mattery in controversy and I do not regard such amendment as a matter of favour or of grace. This was an observation by Boweh, L.J. in Cropper vs. Smit and referred to in this case."

(3.) The point for determination therefore is whether the addition of the prayer for possession would change the nature and character of a suit for an injunction only or not, and if it would so change an amendment can be allowed or not. Or, it would be necessary for the determination of real question in controversy between the parties or not. Parcha Lagan Settlement of Parcha Khatedari stand in the name of the appellants and they are entered as Khatedar therein. The title is thus in their favour. That they honestly believed and asserted their possession on the disputed land at the time of the institution of the suit, even though contended by the opposite party, is supported by the fact that the trial court granted an ad -interim injunction in their favour and also appointed the Patwari to act as receiver when it was represented by the applicants that the opposite party had stepped to violence and Were not caring for the injunction. When the receiver was withdrawn by the trial court; it was not so done because it found the possession to be that of the opposite party, but because it found it to be a disputed one. This withdrawal of receiver positively transferred the possession to the opposite party. The suit was twice dismissed for default in the meanwhile. As soon as it was restored, the applicants applied for an action against the opposite party for acting in defiance of the injunction order. The learned trial court after hearing the parties passed an elaborate order on 20.8.57 that the injunction had become inoperative with the withdrawal of the receiver on 27.10.56. It was also stated in this order that the Patwari handed over possession to the defendants. It is not clear from the record as to from whom he had taken possession. Nor has this point been raised or decided as yet. Nor may it be necessary to decide it. What would be necessary to decide is whether or not the applicants were in cultivatory possession of the suit land oh the date of the institution of the suit; and this matter is covered by issue No. 1 framed by the trial court. The amendment sought to be made is not about the factum of possession on the date of the institution of the suit. But it is about the change of possession since. It purports to pray only that if the court may find at the time of decision that the land was in possession of the opposite party a decree for restoration of possession be also granted. This in no way alters the character and nature of the suit, which remains essentially the same. It is simply an adding of a consequential relief; and it is necessary for the purpose of determining the real matter in controversy between the parties too.