BINJA Vs. TEJA

JUDGEMENT

(1.) This is an appeal against the appellate order of the Commissioner, Ajmer dated 7th Feb., 1959 by which he has set aside the order of the Asstt. Collector, Udaipurwati dated 2.5.56 dismissing the suit of the respondents for declaration and injunction and remanded the case for retrial after allowing an amendment of the plaint.

(2.) We have heard the learned counsel for the parties and have examined the record also. The merits of the case are not disputed before us. The appeal has been filed only against the order allowing the amendment of the plaint, and it has been urged on behalf of the appellants that the amendment having been sought after the dismissal of the suit by the trial court and at a very late stage, although the respondents knew that they had been dispossessed from the suit land and had proceeded for their reinstatement in the court of the Anti -Ejectment Officer and had not been successful there, the amendment, which would also change the nature of suit, should not have been allowed. The amendment sought is not only for adding the relief for possession, but also for adding one more plaintiff as well as making the change in the area of the land in dispute. All the facts sought to be brought in by amendment of the plaint now had been contested by the appellants in their written statement itself and it is a fact that the respondents did not care to have their plaint amended immediately after that. It is also a fact that after two or three months of the institution of the present suit the respondents applied to the Anti -Ejectment Officer for their reinstatement on the ground that they had been wrongfully dispossessed. The proceeding in that application were ordered to be closed by the learned Anti -Ejectment Officer with the observation that a regular suit had been going on between the parties. This order was passed on 6.10.54; whereas the present suit was decided by the trial court on 2.5.56. Even during this interval the respondents did not care to have the plaint amended. It was only in the first appellate court for the first time, when they had lost the suit in the trial court on the ground that there were other share -holders also in the well in dispute and that they were not in possession of the portion of the well over which they wanted to have a declaration of their title and injunction, that they made a prayer for the permission to amend the plaint. The learned Commr. has allowed this amendment and ordered the retrial of the whole suit on the ground that the respondent had been dispossessed from the suit land after the filing of the suit and that the amendment sought was necessary for determining the real question in controversy between the parties and to find out as to who was the person entitled to possession.

(3.) Now, the law on the subject is described in O.6, R.17 of C.P.C., which may be reproduced as below - -