Bimla Khanna vs M.S. Pawar And Ors.
1992 Latest Caselaw 470 Del

JUDGMENT

P.N. Nag, J.

(1) This revision petition is directed against the order dated 25.2.1992 passed by Shri Z.S.Solanki, Sub-Judge First Class, Delhi whereby be has dismissed the application of the petitioner-plaintiff filed under Order 6 Rule 17 of the Code of Civil Procedure seeking amendment of the plaint.

(2) The relevant facts giving rise to this revision petition are that the petitioner-plaintiff filed a suit for permanent injunction against the respondent- defendant on the allegation that the petitioner-plaintiff is a tenant in respect of one shop forming part of property bearing Municipal No. 618-A, Baljeet Nagar, New Delhi and the respondents-defendants have threatened her to dispossess her forcibly. According to the petitioner-plaintiff, the municipal number of the house in fact is T-618-A and not T-618-A as mentioned in the plaint. In fact property No. T-618-A has been given by the landlord privately and now it transpires that the actual number is T-618-B and not T-618-A. In order to avoid this controversy at a later stage, the petitioner-tenant filed the application for amendment that the municipal No.T-618-A as mentioned in the plaint be amended as T-618-Band according to him this amendment is formal in nature.

(3) The respondent-defendant has resisted the application for amendment on the ground that the petitioner-plaintiff has played a fraud on the Court while filing the suit in respect of some other property and by getting ex-parte status quo order and by procuring the local Commissioner's report in respect of property No. T-618-A and obtained forcibly illegal possession of the property No. T-618-B on 5.2.1992. The plea put forward by the petitioner-plaintiff is wholly a concocted plea and it is not formal in nature. . According to the respondent, although the stay order was granted by the Court in respect of property No. T-618-A but he got the forcible possession of the property bearing No. T-618-B on the pretext that it is the same property and now he has Cleverly and malafide filed this application for amendment to grab the property bearing No. T-618-B which actually belongs to the present respondent-landlord. According to him, an entirely new case has been set up and therefore the amendment prayed for cannot be allowed.

(4) I have heard learned Counsel for the parties. I am of the opinion that the amendment sought for is formal in nature as according to the allegations of the petitioner the property No.T-618-A as mentioned in the suit was not correctly given as it was privately given by the landlord and the correct number is T-618-B and the property is the same. This position has no doubt been disputed seriously by Counsel for the respondent. This controversy is on merits of the case which can be decided after holding proper trial and at this stage the Court is not concerned with the correctness or otherwise of the allegations or counter allegations of the parties. In my opinion, the amendment sought for is necessary to determine the point in controversy. It is settled principle of law that the amendment should always be allowed, if it is necessary to determine the point in controversy, between the parties and that the other party can be compensated with costs. In my opinion this is a fit case where the amendment sought for ought to have been allowed. By not allowing the amendment, in my opinion, the Trial Court has exercised its jurisdiction with material irregularity.

(5) The revision petition is therefore allowed and the amendment sought for by the petitioner is allowed subject to payment ofRs,l,000.00 as costs to the respondent. The payment of costs shall be condition precedent. Amended plaint, if not already filed, be filed on or before the next date fixed before the Trial Court.