RAMESHWARLAL AND ANOTHER Vs. MAHESHWARI SAMAJ SAMPATI TRUST

JUDGEMENT

(1.) Petitioner plaintiffs filed a suit for permanent injunction to the effect that the defendant be restrained from closing window and ventilaters which were in the Northern and Southern side of the wall of the plaintiffs house. In the suit the defendant appeared and resisted the same, after the written statement was filed the petitioner plaintiffs filed an application dated April 5, 1990 for amendment of the plaint. The application was filed under the provisions of Order 6 Rule 17 of the Code of Civil Procedure. By amendment the description as regards the controversy of easementary rights of the plaintiffs was sought to be given. The defendant objected to the amendment being granted on the ground that the amendment was in the knowledge of the plaintiffs and therefore, there was no reason to supress the same and not to mention it at the time of filing of the suit. The trial Court held that if the amendment is allowed it would change the nature of the suit. The trial Court held that there was delay in filing the application for amendment and if the amendment is allowed it would change the nature and form of the suit, therefore, rejected the application for amendment. While considering the question as to whether the amendment should be granted, it is required to be seen by the Court as to whether the amendment is necessary for the purpose of determining the real controversy between the parties. If one looks at the order passed by the trial Court no where one finds that the trial Court has come to the conclusion that the amendment in question is not necessary for the purpose of determining the real controversy between the parties. Thus, it is evident that the trial Court has committed material illegality while deciding the application for amendment. In other words, the trial Court has failed to exercise jurisdiction vested in it by not taking into consideration the relevant provision of law and not applying the same.

(2.) By no strech of imagination it can be said that the description given by the plaintiffs as regards the derivation of easementary right in question is not necessary for determining the real controversy between the parties. In this view of the matter the order passed by the learned trial Court in refusing the application I for amendment is liable to be quashed and set aside. In the result the application is allowed, the order passed by the trial Court dated 20-3-91 refusing the amendment application as prayed for is quashed and set aside. The application dated 5-4-90 filed in Civil Suit No. 82/90 in the Court of Addl. Munsif and Judicial Magistrate, Bhilwara is allowed. In view of the facts and circumstances of the case, it is directed that the plaintiff shall pay an amount of Rs. 500.00 as and by way of cost to the defendant. The payment of cost will be deposited in the trial Court. Only on the receipt being filed by the other side that the amount of cost has been received the amendment as prayed for and which has been allowed shall be carried out. It is further clarified that the trial Court will grant all opportunities to the respondent defendant to file further written statement and raise any other point as may be available to the respondent defendant as per law.

(3.) The revision application stands allowed accordingly. Application allowed.