- (1.) THIS revision is directed against an order passed on 16 -3 -1981 by Sub Judge (Municipal Magistrate) Srinagar declining plaintiffs prayer for amendment of the plaint. The plaintiff had asked for a permanent injunction restraining defendant No. 1 from undertaking the construction of his house in contravention of the building permission granted by the Municipality as also for a direction commanding the said defendant to have a blind wall with no windows, ventilator or apertures or even the eves dropping in the side of the plaintiffs compound adjoining the site of construction, After the final arguments were heard in the suit, the plaintiff moved an application for amendment of the plaint. It was alleged in the application that during the pendency of the suit the defendant had opened windows and ventilators towards the compound of the plaintiff and it was prayed that the plaintiff be permitted to amend the plaint in order to enable him to ask for mandatory injunction to the effect that the plaintiff should close the windows and ventilators so opened by him. The trial court disallowed the amendment. In this, the court was influenced by the fact that in the course of his statement at the trial of the suit the plaintiff had admitted that the windows and ventilators in question had been opened by the defendant towards the compound of the plaintiff before the institution of the suit.
(2.) THE argument of the learned counsel for the plaintiff is that, on this consideration, the trial court caught not to has rejected his prayer for amendment. He urged that merely because an amendment is asked for at a late stage, it cannot be a good ground for disallowing the amendment. In support of his argument he, placed reliance on a judgment of the Supreme Court in M/S Ganesh Trading Co. Vs. Moji Ram (AIR 1978 S, C: 484). In the case of Ganesh Trading Co (Supra) the suit was filed in the name of the firm for the recovery of money due on a promissory note. Subsequently the plaintiff asked for amendment. The proposed amendment was aimed at explaining the omission in the plaint in regard to reference to the fact that the firm had been actually dissolved before the institution of the suit, it being averred that the omission was indvertant.
(3.) THE lower courts had disallowed the amendment. In appeal by special leave, the Supreme Court allowed the amendment. On facts stated above this case has no bearing on the present case. Here, on the own admission of the plaintiff, the windows and ventilators were in existence before the institution of the suit He could very well ask for the relief now sought by him in respect thereof. If he did not ask for that relief though it was available to him, he must be deemed to have given up the same. That apart, it has been avered in the application that the windows and ventilators were opened during the pendency of the suit, whereas, on his own admission of the plaintiff, they were in existence before the suit was instituted. Thus the basis on which the amendment is claimed does not really exist In the circumstances the order of the court below refusing the amendment cannot be said to be unjustified. There is no merit in this revision which is hereby dismissed but without any order as to costs. The parties are directed to appear in the court below on 3O -12 -1982.;