Balkrishna Ganpat Elwande vs Shankar Tukaram Sable And Ors.
2006 Latest Caselaw 889 Bom

JUDGMENT

Vasanti A. Naik, J.

1. Rule. Rule made returnable forthwith. The matter is taken up for final disposal with consent of counsel for the parties; at the stage of admission.

2. By this petition, the petitioner has challenged the order passed by the Civil Judge, Junior Division, Newasa on 14-10-2005 rejecting an application filed by the petitioner/plaintiff under Order 6, Rule 17 of the Code of Civil Procedure.

3. The petitioner/plaintiff filed a suit against the respondents seeking permanent injunction to restrain the respondents from obstructing the possession of the plaintiff over the suit property. During pendency of the suit, temporary injunction was granted in favour of the petitioner/plaintiff and the trial Court also appointed Taluka Inspector of Land Records as a Court Commissioner for measurement of the suit property. The Commissioner's report was placed on record and according to the plaintiff, it showed that the defendants had encroached upon the suit property. The petitioner, therefore, filed an application seeking amendment to the plaint, on 5-1-2005 by incorporating certain paragraphs as well as prayer clauses. By the proposed amendment, the petitioner wanted to plead that in spite of operation of the injunction order in favour of the petitioner, the defendants illegally encroached upon the suit property. According to the proposed amendment, the fact of encroachment was revealed to the petitioner after the Commissioner's report was perused. In view of the subsequent development, the petitioner pleaded that it was necessary to pass a decree for possession against the defendants.

4. The defendants filed their say to the amendment application and submitted that the report filed by the Taluka Inspector of Land records was a false report. It was then submitted in the say/reply that initially the suit was filed for grant of permanent injunction and since by the proposed amendment, the petitioner was seeking possession of the property, the nature of the suit would be completely changed if the amendment application is allowed.

5. The Civil Judge, Junior Division, Newasa, after hearing the counsel for the parties, rejected the application filed by the petitioner under Order 6, Rule 17 of the Code of Civil Procedure. According to the trial Court, the suit was filed by the plaintiff only or permanent injunction and by the proposed amendment, the plaintiff was intending to seek possession of the land, which was encroached upon by the defendants. According to the trial Court, the nature of the suit would be completely changed, if the amendment application was allowed. The trial Court further held that in case the amendment application was allowed, great loss and damage would be caused to the defendants, which could not be compensated in terms of money. The trial Court, therefore, rejected the application on the ground that it was not tenable.

6. Shri Sapkal, learned Counsel appearing on behalf of the petitioner submitted that the trial Court was not justified in rejecting the application for permission to amend the plaint. It is submitted on behalf of the petitioner that the plaintiff had filed the suit for permanent injunction against the defendants and during pendency of the suit, the defendants had dispossessed the plaintiff and, therefore, to avoid multiplicity of proceedings, it was necessary to amend the suit and also seek possession of the property from the defendants. It was then canvassed on behalf of the petitioner that the proposed amendment did not change the nature of the suit and no loss or damage would be caused to the defendants in case the amendment application was allowed as according to the plaintiff, the defendants had encroached upon the disputed property during pendency of the suit in spite of grant of temporary injunction in favour of the petitioner. The counsel for the petitioner then relied on a decision in the case of Sampat Kumar v. Ayya Kannan and Anr. 2002 S.A.R. Civil 854 to buttress the submission that the proposed amendment did not change the nature of the suit and the basic structure of the suit was not altered by the proposed amendment by which the plaintiff also sought possession of the property from the defendants.

7. Shri Hon, learned Counsel for the respondents supported the order passed by the Civil Judge, Junior Division, Newasa and submitted that the proposed amendment changes the nature of the suit. It was submitted on behalf of the respondents that the trial Court was justified in holding that earlier the plaintiff had filed a suit for permanent injunction and since by the proposed amendment the plaintiff was also seeking possession of the property, the nature of the suit would be changed in case the proposed amendment was allowed. It was then submitted on behalf of the respondents that the report filed by the Taluka Inspector of Land Records was not proper and, therefore, it was not necessary for the trial Court to grant the amendment application.

8. The facts of the case clearly revealed that initially the plaintiff had filed the suit for permanent injunction for restraining the defendants from interfering with the plaintiffs peaceful possession over the suit property. After the Court Commissioner submitted the report, the plaintiffs realised that a part of the suit property was encroached upon by the defendants during pendency of the suit and in spite of the injunction order in favour of the plaintiff. The plaintiff, by the proposed amendment, wanted to bring this subsequent event on record and as a consequence of those subsequent events, desired to seek possession of the suit property from the defendants. The proposed amendment did not change the nature of the suit. In fact, by allowing the amendment application, multiplicity of proceedings could have been avoided. The trial Court did not follow the principle which it ought to have followed while considering the application for grant of amendment. It has been laid down in the decision reported in 2002 S.A.R. Civil 854 that it was permissible to convert a suit for permanent prohibitory injunction into a suit for declaration of title and recovery of possession. In similar set of facts, the Supreme Court observed that the basic structure of the suit is not altered by the proposed amendment. According to the Supreme Court, what was sought to be changed is the nature of the relief sought by the plaintiff. It was then laid down by the Supreme Court that in order to avoid multiplicity of suits, it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The ratio laid down in the aforesaid decision squarely applies to the facts of the instant case. The Civil Judge, Junior Division, Newasa committed an error in holding that the proposed amendment changed the nature of the suit and in case the amendment was allowed, great loss and damage would be caused to the defendants, which could not be compensated in terms of money.

9. For the reasons aforesaid, the impugned order passed by the Civil Judge, Junior Division, Newasa on 14-10-2005 cannot be sustained. The writ petition is allowed. The impugned order dated 14-10-2005 is hereby set aside. The amendment application filed by the petitioner at Exh. 63 is allowed. Rule is made absolute in terms of prayer Clause (B). However, in the facts of the case, there would be no order as to costs.

10. It is needless to mention that the observations made in this writ petition are prima facie observations and shall not be considered by the trial Court while deciding the suit on merits.