Smt.Sunita Devi vs Sh. Roop Ram & Anr.
2014 Latest Caselaw 6878 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            CM(M) No.507/2013 & C.M.No.7634/2013 (Stay)

%                                                    16th December, 2014

SMT.SUNITA DEVI                                              ......Petitioner
                           Through:      Mr. B.D.Sharma, Advocate.


                           VERSUS

SH. ROOP RAM & ANR.                                        ...... Respondents
                           Through:      Mr.Rajat Aneja, Advocate for R-1.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.    This petition under Article 227 of the Constitution of India is filed by

the defendant no.1 in the suit impugning the order of the trial court dated

23.1.2013 by which the trial court has allowed the amendment application

filed by the respondent no.1/plaintiff. By the amendment, the respondent

no.1/plaintiff has been allowed to file an amended site plan with respect to

the suit property and also to claim the relief of possession with respect to the

area illegally encroached upon by the petitioner/defendant no.1.

2.    The original suit which was filed was a suit for mandatory injunction.

As per the original suit/plaint, the respondent no.1/plaintiff prayed for a


C.M.(M) No.507/2013                                                Page 1 of 5
 mandatory injunction for directing the petitioner/defendant no.1 to remove the

illegal and unauthorized construction in the encroached area of the property of

the respondent no.1/plaintiff situated in khasra no.129/1, Village Nankhera,

Tehsil Mehrauli, New Delhi.


3.       The sum and substance of the original suit/plaint was that the respondent

no.1/plaintiff claimed to be the owner of the 1/4th share of the suit plot

admeasuring 1000 sq. yds. in khasra no.129/1, Village Nankhera, Tehsil

Mahrauli, New Delhi, and as per the plaint, the petitioner/defendant no.1

encroached the area of 30 sq. yds. belonging to the respondent no.1/plaintiff,

with respect to which the relief of mandatory injunction to remove the

unauthorized construction was prayed.


4.       The trial court has allowed the amendment application and observed that

essentially the relief claimed now of possession was in a way already pleaded

in the existing suit for mandatory injunction although the prayer was covered

seeking mandatory injunction. Also, the trial court has observed that allowing

the amended site plan to be taken on record will serve the ends of justice by

clearly elucidating and identifying the suit property for which the suit has been

filed.


5.       To the aforesaid conclusions of the trial court, I would like to add that

ordinarily courts are liberal in allowing amendments of pleadings especially

C.M.(M) No.507/2013                                                 Page 2 of 5
 when amendments arise more or less out of the set of facts which are already

pleaded on record. Also, by allowing of an amendment application, merits of

the case are not decided and merits would be decided at the stage of final

arguments in accordance with law. Amendments are disallowed only if they

are malafide or if they totally change the nature of the case. In my opinion, the

impugned order dated 23.1.2013 allowing the amendment to the plaint by filing

an amended site plan identifying the suit property which is said to be illegally

encroached by the petitioner/defendant no.1 and seeking decree of possession

are aspects which arise out of the existing set of facts found in the original

suit/plaint viz the facts pertaining to encroachment by the petitioner/defendant

no.1 on the area which was owned in the suit plot by the respondent

no.1/plaintiff.


6.     Counsel for the petitioner argues that the amendment application ought

not to have been filed because now a new property is being claimed instead of

the property which was originally claimed in the plaint, inasmuch as the site

plan now filed shows a different property. Impugned order is also prayed to be

set aside because it is argued that the amendment allows a time barred claim.


7.     Both the arguments urged on behalf of the petitioner/defendant no.1 are

totally misconceived inasmuch as if an earlier site plan wrongly mentions a

different property and a new site plan is filed showing the correct property, it


C.M.(M) No.507/2013                                                Page 3 of 5
 cannot be said that a new case is being introduced inasmuch as the issue still

remains of encroachment of 30 sq. yds. of area belonging to the respondent

no.1/plaintiff in khasra no.129/1, Village Nankhera, Tehsil Mehrauli, New

Delhi. By filing of the fresh site plan, actually the correct area of encroachment

is being identified.


8.     So far as the issue of limitation is concerned, as already stated above, by

allowing of amendment, issues of merits are not decided, more so when the

aspect of limitation is only a case/ defence of the petitioner/defendant no.1, and

which will require evidence and trial for the same to be established. The

petitioner/defendant no.1 will have sufficient opportunity in terms of the

amended written statement now to be filed to plead all pleas of fact and law,

and disputed questions of fact as regards the limitation cannot be and are not

examined at the time of allowing of an amendment application.


9.     Powers under Article 227 of the Constitution of India are discretionary

and extraordinary powers. The Code of Civil Procedure, 1908 (CPC) provides

that certain orders are appealable and certain orders are not appealable

specifically for the reason that the orders which are not appealable, should not

ordinarily be challenged by the litigants and that challenges against such

impugned orders should not be entertained by the courts in exercise of the

extraordinary and discretionary jurisdiction under Article 227 of the


C.M.(M) No.507/2013                                                 Page 4 of 5
 Constitution of India. Powers under Article 227 of the Constitution of India are

exercised only if there is a clear-cut and gross injustice caused by an impugned

order, and courts therefore will not interfere in the orders allowing amendment

application such as the present inasmuch as no grave injustice is caused.


10.   In view of the above, there is not merit in this petition, and the same is

therefore dismissed with costs of Rs.20,000/-. Costs shall be paid to the

respondent no.1/plaintiff before the trial court by the petitioner/defendant no.1.




DECEMBER 16, 2014                                     VALMIKI J. MEHTA, J.

KA