YANGZILA BHUTIANI Vs. NAURANTANMAL ASHOK KUMAR

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India has been preferred impugning Order dated 20-04-2012 to the extent, an application filed by the petitioner (plaintiff) for amendment of the plaint has been rejected. As a matter of fact, the petitioner had filed two applications - one under Order XXVI Rule 1 CPC for issue of commission and another under Order VI Rule 17 seeking amendment of the plaint. The controversy in the present petition relates only to the issue of the amendment.

(2.) THE plaintiff filed a suit for eviction and recovery of possession, recovery of arrear of rents, mesne profits etc. against the respondents in the Court of the District Judge, Special Division-I, Gangtok. During the pendency of the suit, the plaintiff made an application for amendment of the plaint so as to incorporate certain facts pertaining to registered sale deeds and to add another ground of eviction that is the personal necessity for her three sons who are said to be totally unemployed and intend to start their own business and avocation in the suit property. The trial Court vide the impugned order rejected the prayer for amendment with the following observations :-

(3.) AT this stage, Mr. Pradhan submits that the petitioner may be allowed to withdraw this suit with liberty to file a fresh one so as to incorporate all necessary details in respect to the ground of personal necessity as well. His submission is that the plaintiff/petitioner be allowed to file a fresh suit on the same cause of action with addition to new ground of eviction. Mr. Gulshan Rai Nagpal, learned counsel appearing for the respondents (defendants) submits that he has filed a counter claim and if the plaintiff is allowed to withdraw the suit, he has instruction not to withdraw the counter claim and thus counter claim be allowed to continue as a separate suit. Obviously no party can be compelled to withdraw the counter claim though filed in the same suit and can be treated as a separate lis even if the suit is dismissed or withdrawn. There is merit in the contention of Mr. Nagpal. He has further submitted that since the petitioner's present suit is vexatious, he cannot be permitted to withdraw the suit and file a fresh. In order to support his contention, he submits that the plaintiff/petitioner in her cross-examination while appearing as a witness in trial Court has submitted that she has no personal knowledge of facts and circumstances of the litigation. I am afraid that this can be a ground to deny her right to withdraw this suit with liberty to file a fresh one, when the petitioner has definitely a right to file a fresh suit on the additional ground as well. To prevent the multiplicity of the proceedings and in the interest of justice, prayer of the petitioner to withdraw the present suit and file a fresh one on the same cause of action that is on the ground of default in payment of rent and also on the ground of personal necessity needs to be allowed.