Chet Ram Through Lrs Ram Singh And ... vs Krishan Kumar And Ors.
2002 Latest Caselaw 216 Del

JUDGMENT

R.C. Jain, J.

1. This Civil Revision is directed against the order of the learned Civil Judge, Delhi dated 1st February, 2000 by which an application under Section 151 CPC moved on behalf of the plaintiff seeking permission to file and get an amended cite plan of the suit property exhibited in place of the already exhibited site plan of the suit property has been declined.

2. A suit for declaration, mandatory and permanent injunction filed by the father/predecessor-in-interest of the present petitioner is pending trial and is at an advanced stage. The petitioner earlier filed an application for amendment of the plaintiff, inter alia, seeking amendment of the site plan as an objection was raised by the defendant about the correctness of the site plan filed by the plaintiff Along with the plaint. The said application was allowed by the trial court vide an order dated 4.1.1989. However,. it appear that the amended site plan which found mention in the application for amendment and in regard to which the amendment was allowed was, however, not filed on record. During the course of trial, the original site plan as filed by the plaintiff Along with the plaint and another site plan filed by the defendant were exhibited as Ext.P-1 and D-1 respectively. The plaintiff having realised his mistake of not filing the amended site plan filed the application Along with the amended site plan seeking permission of the Court to exhibit the same.

3. I have heard Mr. K.R. Chawla, learned counsel representing the revision petitioner and Mr. S.S. Vats, learned counsel representing the respondent and have given by thoughtful consideration to their respective submissions.

4. It is not disputed that the amended site plan which was sought to be filed by the plaintiff Along with the amendment application has not come on record, but the facts remain the vide order dated 4.1.89, the learned trial court had permitted the plaintiff to file such an amended site plan. To that extent the plaintiff can certainly be said to be careless, but the question is as to whether in these circumstances the trial court ought to have granted permission to the plaintiff to bring amended site plan on record at the subsequent stage. Learned counsel for the respondent has vehemently urged that vide order dated 4.1,1989 the learned trial court had not allowed the plaintiff to file the amended site plan on the premises that there is no specific mention of such a prayer having been allowed by the Court. I, however, see no merits in this contention because the learned trial court had allowed the application of the plaintiff under Order 6 Rule 17 in toto without any reservation and therefore the amendments including the amendment so far as it related to the filing of the amended site plan will be deemed to have been allowed. Yet another contention of the learned counsel for the respondent is that at this late stage, the plaintiff should not be allowed to change his case as the two plans one filed by the plaintiff and other by the defendant have already been exhibited on record. It is true that the two plans have already been exhibited on record, but it was due to inadvertence and at best on account of some mistake/carelessness on the part of the plaintiff. The respondent can very well be compensated for delayed action on the part of the plaintiff but the plaintiff should not be deprived of his right to prove a correct site plan of the disputed property. Disallowing him to do so has resulted into miscarriage of justice because on the strength of the existing site plan which according to the petitioner is not the correct site plan, the real question in controversy cannot be adjudicated upon by the trial court.

5. In view of the foregoing, this Court is of the opinion that the present revision petition deserves to be allowed and the impugned order is liable to be set aside. Accordingly the impugned order of the learned Civil Judge, Delhi dated 1.2.2000 is hereby set aside and the application of the plaintiff-petitioner under Section 151 CPC is allowed, however, subject to payment of Rs. 2000/- as costs. The correct site plan which has been filed Along with the application shall be taken on record and the learned trial court shall afford an opportunity to the parties to lead evidence qua the newly filed site plan and shall proceed to dispose of the suit in accordance with law.

6. Trial court record be sent back forthwith.