ZINNAT REHANA Vs. SAFUR ALI
HIGH COURT OF GAUHATI
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Prasanta Kumar Deka, J. -
(1.) Heard Mr. A.C. Sarma, learned counsel appearing for the petitioner. Also heard Mr. H.K. Sarma, learned counsel appearing for the respondent.
(2.) In this revision application the order dated 7.4.2017 passed by the learned Civil Judge
No. 2, Kamrup (Metro) in Misc.(J) Case No.569/2016 arising out of Title Suit No. 300/2015 is put under challenge. The present petitioner as the plaintiff filed the suit for specific performance of contract pleading that after execution of the agreement for sale he was delivers possession of the suit land which he accepted. The defendant-respondent contested the claim of the plaintiff-petitioner thereby denying the par performance on the part of the defendant-respondent of delivery o possession of suit land as per the contract. The suit proceeded after framing of the issues and while the suit was fixed for crossexamination of plaintiff side and cross-examination of petitioner was going on, at that stage the petitioner preferred an application under order VI, rule 7 of the Code of Civil Procedure, 1908 ('CPC') to introduce the following, which is reproduced herein below :
"7. That, the above illegal acts of the opposite party/defendant amounts to dispossession of the petitioner plaintiff from the suit premises for which the plaint is required to be amended as follows :
A. A new paragraph as 11(a) is to be added after paragraph 11 of the plaint as follows -
"That, on 10.8.2016 the opposite party/defendant has trespassed over the suit premises, have cut the mango and neem tree standing over the suit premises by engaging labourers. The labourers also have cleaned the suit premises and removed the chali house constructed by the plaintiff/petitioner over the suit premises which was standing in a dilapidated condition. Further, to the utter surprise of the petitioner/plaintiff the opposite party/defendant has allowed some persons to stay in the portion of the house standing over the suit premises by removing the lock put therein by the petitioner/plaintiff and the opposite party defendant has asked the petitioner/plaintiff not to enter into the suit premises.
B. Following are to be added in between the words "plaintiff" and "and as appearing in the fourth line of the paragraph 13 of the plaint after putting a, "," sign after the word "plaintiff"
"on 10.08.2016 when the opp. party defendant has illegally occupied suit premises."
C. A new paragraph as paragraph No. "ii(a)" is to be added as follows after the paragraph No. "ii" in the prayer portion of the plaint.
"ii(a) for recovery of possession of the suit premises by ejecting his men and materials therefrom."
(3.) The defendant-respondent raised his objection against the said application for amendment by filing written objection and the said amendment application was registered as Misc (J) Case No.569/2016. After hearing the parties to the suit, the learned trial court rejected the amendment application of the plaintiff-petitioner and while doing so the learned court held as follows :
"It is true that it is open to the plaintiff to sue not only for the execution of a deed of sale, but also for possession but he is not bound to do so for the simple reason that at the time when she instituted the right to possession was not vested in her. She acquires that right only on the execution of the deed of conveyance by the vendor.
For such incorporation by way of amendment of plaint as prayed for by the plaintiff, apparently, the character and nature of the suit will be changed.
Considering all the foregoing rationale, I find it imprudent to allow the plaintiff's prayer to amend the plaint, more so, when the trial has already commenced.
Petition 3935 is rejected.
This Misc.(J) Case is dismissed on contest No costs."
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