Janardan Urkuda Waghmare vs Ratanlal Kashinath Gudekar
2007 Latest Caselaw 829 Bom

JUDGMENT

Chaudhari A.B., J.

1. Rule. Heard forthwith by consent of parties. Heard Mr. A.C. Dharmadhikari, learned Counsel for petitioner and Dr. Anjan De, learned Counsel for respondent.

2. Petitioner has challenged order dated 25.4.2007 passed by the Civil Judge, J.D. Rajura in RCS No. 6 of 2006 rejecting his application (Exhibit 41) for amendment of plaint.

3. Petitioner is original plaintiff who filed RCS No. 6 of 2006 for grant of permanent injunction. In his suit, he claimed that his neighbour/defendant ought to have left 1.1/ 2 feet space towards the house of the petitioner, so also on the side of the respondent/defendant. An application for grant of temporary injunction filed by the petitioner/ plaintiff was rejected. The respondent then made construction on his plot. The petitioner thereafter filed an application for amendment of suit. In his application for amendment, he averred that at the time he filed suit, there was a great hurry. He then got the land measured through a retired Government Surveyor who prepared map of the spot which, according to him, indicated that as a matter of fact, the respondent had encroached on the plot owned by the petitioner to the extent of 9.43 sq.mtr. and the total construction on this land made by the respondent was 47-1/2 square feet. He then averred in his application that this development took place during the pendency of the suit and, therefore, it necessitated the amendment of plaint.

4. Application was opposed mainly on the ground that the petitioner had initially come out with a case that it was only 1.1/2 feet space that was required to be left on the side of the plaintiff as well as on the side of the defendant, but now the petitioner wants to withdraw the said admission and substitute a new plea which is bound to prejudice the case of the respondent.

5. The learned Trial Court after hearing the parties, rejected the said application (exhibit 41) mainly on the ground that it amounts to withdrawal of important admission and further that the case was posted for hearing and by virtue of 2002 amendment to the Code of Civil Procedure, in the absence of due diligence being shown, it was not possible to allow the said application.

6. Learned Counsel for the petitioner has vehemently argued that correcting mistake in the plaint in making description of the exact property belonging to the petitioner encroached by the respondent would not amount to withdrawal of admission. He then submits that as a matter of fact, he got his land measured from a retired Government Surveyor and to his astonishment, the encroached portion was 9.43 sq. mtrs. and not 1.1/2 square feet, as initially thought by him. This is obviously a subsequent development and cannot be termed as an inconsistency.

7. Per contra, Dr. Anjan De, learned Counsel for the respondent opposed the submission and argued that in the first place, the trial having been commenced, the amendment to the Code of Civil Procedure prohibits such type of attempt to make amendment in the absence of appropriate pleadings in the application without due diligence. In his submission, the nature of the amendment is such that in fact, it wholly changes the nature of the suit and the earlier pleadings show that the defendant had not left the space of 1.1/2 feet. According to Dr. De, it will amount to withdrawal of admission which is impermissible in the light of the judgment of the Supreme Court in (Estralla Rubber v. Dass Estate) . Dr. De relied upon decision of the Supreme Court in the case of (Baldev and Ors. v. Manohar and Anr.) . to contend that inconsistent or alternate defences are permissible in the Written Statement, but that is not available insofar as plaint is concerned. He argued that in the instant case, the petitioner is trying to set up an inconsistent plea which cannot be allowed. Consequently, he prayed for dismissal of writ petition.

8. Having considered the rival submissions made by the learned Counsel for the parties and having gone through the impugned order as well as the application (exhibit 41) for amendment so also, the reply filed by the respondent in the Trial Court to the said application, I find that initially, the petitioner claimed that 1.1/2 feet space was not left by the respondent and that is why he claimed mandatory injunction. It is further clear that the petitioner then decided to get the land measured from a retired Government Surveyor and the said surveyor prepared map after visiting the spot and reported that 9.43 sq.mtrs of land of the petitioner was encroached by the respondent. Now, whether the case of, the petitioner, obviously based on the said report of the surveyor is true or not, is a matter to be decided at the time of trial. It is well settled that the merits of the amendment are not to be looked into while considering the application for amendment. The parties are always at liberty to oppose the merits of the amended portion and to rebut the pleadings and proof. That apart, what is seen in the instant case is that the petitioner who ought to have got his land measured before filing the suit, did it so at a later point of time and then prayed for amendment. I do not find any want of bona fides in the petitioner in doing so. The petitioner, therefore, prayed for amendment for bringing the said subsequent development on record and making related prayers. In my opinion, there is neither any inconsistency nor any withdrawal of admission on the part of the petitioner by moving the said application (Exhibit 41). Petitioner merely wants to correct his mistake which cannot be said to be impermissible. The decisions cited by Dr. Anjan De, learned Counsel for petitioner are distinguishable on facts.

9. In view of this, the impugned order dated 25.4.2007 is quashed and set aside.

10. Rule made absolute in terms of prayer Clause (A) of the petition. Amendment application (Exhibit 41) is allowed. Petitioner to carry out amendment within four weeks from today. Petitioner to pay costs of Rs. 1000/- to the respondent of this petition. Rule accordingly.