Umrao Singh vs Ram Dulari And Ors.
1997 Latest Caselaw 692 Del

JUDGMENT

K.S. Gupta, J.

(1) This revision petition by the plaintiff-petitioner is directed against an order dated November 16, 1993 of a Subordinate Judge disallowing amendment in Para 4 of the plaint.

(2) Only a few facts are necessary to appreciate the controversy raised in the revision petition.

(3) In the suit filed for permanent injunction against the defendants-. respondents, the petitioner filed an application under Order Vi, Rule 17 and Section 151 Civil Procedure Code dated March 26,1993,for amending Paras 1,2 & 4of the plaint.By the order dated November 16,1993 petitioner was, however, permitted to amend Paras 1 & 2 only. Existing Para 4 of the plaint runs as under : "THATthe grandfather was also the owner of another property bearing No. 4065, Sadar Bazar, Gali Barna,BastiMansa, Delhi, measuring 200 sq.yds. The grandfather of the plaintiff was having three sons. During his life time Ram Chander divided his property. He divided the property No. 4065, Sadar Bazar, Gali Barna, Basti Mansa, Delhi into three parts and gave one part each to his sons. The grandfather of the plaintiff also put in possession the plaintiff of property No. 8438, Arya Nagar, Paharganj, New Delhi, and the plaintiff was allowed to deal with the property in any manner he likes. As per desire of the grandfather, the plaintiff is residing in the suit property and has also let out the property to the tenants. He has been collecting the rent from the tenants also since long without any interruptions, interference or obstruction from any corner."

(4) Petitioner wanted to amend the aforesaid Para 4 as under : "THAT the grandfather was also owner of another property bearing No. 4065, Sadar Bazar, Gali Barna, Basti Mansa, Delhi, measuring 200 sq. yds. The grandfather of the plaintiff was having three sons. During his life time he placed his three sons into possession of property No. 4065, Sadar Bazar, Gali Barna, Basti Mansa, Delhi. The grandfather of the plaintiff also put in possession the plaintiff in the property No. 8438, Arya Nagar, Paharganj, New Delhi and the plaintiff was allowed to deal with the property in any manner he liked. As per desire of the grandfather, the plaintiff is residing in the said property portions of which were also let out to the tenants. He has been collecting the rent from the tenants also since long without any interruption, interference and obstruction from any corner. The grandfather also executed a Will in favour of his wife Smt. Imrati Devi bequeathing his entire property in her favour. Smt. lmrati Devi also executed a Will dated 6th January, 1990 bequeathing the entire property in favour of the plaintiff to the exclusion of all her other legal heirs. The plaintiff is thus sole and absolute owner of all the properties of deceased Sh. Ram Chand and Smt. lmrati Devi including the property No. 8438, Arya Nagar, Paharganj, New Delhi."

(5) In short the case set up in the plaint by the petitioner is that defendant No. 2/respondent No. 3 (uncle of the petitioner) has got an evil eye on the property belonging to the petitioner and he in collusion with defendants 1 and 2 /respondents I and 2 wants to demolish the staircase and to construct a new staircase and also structure on the second floor of property No. 8438, Arya Nagar, Paharganj unlawfully. A decree for injunction has been claimed against the respondents permanently restraining them, their masons, labours, agents, associates etc., from demolishing and reconstructing the staircase and from making construction on the second floor of the aforesaid property. Respondents are further sought to be restrained from obstructing the right of passage of the petitioner from the common entrance at the ground floor of the property. It may be noticed that the relief sought to be said effect as per the averments made in existing Para 4 of the plaint is based on possession of the petitioner over said property No. 8438, Arya Nagar, but by seeking amendment in the aforementioned para petitioner wants to change the basis to that of title to the property. It being a new basis constituted by new facts amounts to introducing a new cause of action which the petitioner cannot be legally permitted to take. I am unable to agree with the submission advanced on behalf of the petitioner that the impugned order disallowing the amendment is contrary to the law of pleadings. Decisions in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil & Ors., , Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar, , Akshaya Restaurant v. P. Rmdas & Another 1995 Supp.(2) Scc 303 and Basavan Jaggu Dhobi v.Suklmandan Rmdas Chaudhary & Ors., 1995 Supp. (3) Scc 179 relied on behalf of the petitioner are of no help to the petitioner. Impugned order thus, does not suffer from any illegality which may call for interference in revision.

(6) In the result, revision petition is dismissed but with no order as to costs. Both the parties will appear before the Trial Court for further direction on.