SITARAM Vs. KANA

JUDGEMENT

(1.) The plaintiff sought to amend the original plaint by making an application on the ground that the defendants had denied their tenancy and had claimed ownership in 2 Bighas and some Biswas of land in the remaining portion of the land they were clearly trespassers who were liable to ejectment as well as to penalty for use and occupation of the land. In the original plaint he had contended that they were his tenants and as they were not paying him his share of the produce by way of rent he did not desire that they should continue in possession as tenants. Held that the plaintiff cannot be allowed to convert a tenant into a trespasser unless he alters the whole cause of action thereby changing the basis of his claim. Gokul Narain Sharma, Advocate, for Applicant; Naval Kishore Mathur, Vakil, for Opposite -Party This revision is directed against an appellate order of the Additional Commissioner, Jaipur, dated 24.8.1956 which reversed an order of the Assistant Collector, Jaipur, dated 18th May, 1956, relating to amendment of plaint in a suit for possession and mesne profits which was instituted by the applicant against the opposite -party in the court of the Munsif, Jaipur, in the first instance, and was subsequently transferred under sec. 3, clause (2) of the Jaipur State Grants Land Tenures Act, 1947 to the Nazim Sawai Jaipur for disposal on 3.3.1947.

(2.) We have heard the learned counsel appearing for the parties and have also examined the record. The only point which was strenuously urged before us on behalf of the applicant was that the learned Additional Commissioner was not justified in refusing the amendment of the plaint which had been allowed by the learned Assistant Collector under Order 6, Rule 17 on the ground that the amendment of the pleading was necessary for securing the ends of justice and was not intended to take the defendant by surprise. In seeking this amendment the plaintiff had no malafide intention nor would any injury accrue to the defendants which could not be compensated by costs.

(3.) Aggrieved by the order of the learned Asstt. Collector the defendants preferred an appeal to the learned Additional Commissioner. After considering the pros and cons of the matter and carefully examining the amendment which was sought to be introduced by the plaintiff the learned Additional Commissioner allowed the appeal and set aside the order of the learned Asstt. Collector mainly on two grounds - -