MUSLIM AUQAF TRUST Vs. GH HASSAN WAZA
LAWS(J&K)-1986-5-9
HIGH COURT OF JAMMU AND KASHMIR
Decided on May 30,1986

Muslim Auqaf Trust Appellant
VERSUS
Gh Hassan Waza Respondents

JUDGEMENT

- (1.) THIS revision under Section 115 of the Code of Civil Procedure is directed against the order passed by Sub -Judge (Forest Magistrate) Srinagar on June 26, 1984 in Civil Suit No. 99/37 Bikrami titled as Ghulam Hassan Waza Versus Muslim Auqaf Trust and others. By the order impugned, learned trial court allowed the application of respondent No. 1 the Plaintiff in that suit for amendment of the plaint incorporating the prayer of mandatory injunction based on subsequent events. The plaintiff in 1976 instituted a suit for perpetual injunction against the present petitioner prayed for restraining the present petitioner from interfering in the possession of the plaintiff on the land measuring 3 Kanals and 12 Marias under Survsy No. 141/2,min situated at Buchwara, Srinagar. The plaintiff also obtained a temporary injunction in the suit against the petitioner, which ultimately culminated into an order passed by the Honble High Court on May 29, 1980 allowing the present petitioner to raise the construction on the suit land after furnishing an undertaking to the effect that the defendants will demolish the structure in case the plaintiff succeeds in the suit. In consequence whereof during the pendency of the suit, petitioner raised construction on the suit land, which necessitated the present amendment. It is not necessary to reproduce the entire proposed amendment, which precisely made on the basis of subsequent events by detailing the facts of raising the construction during the pendency of the suit prayed for the addition of relief of mandatory injunction on an additional value and paying the court -fee thereof. The application was contested by the petitioner. The learned trial Court after hearing the parties allowed the amendment imposing cost of Rs. 30/ - on the plaintiff and directed to file the amended plaint which stood complied with by the plaintiff/ respondent No. 1.
(2.) LEARNED counsel for the petitioner laid great stress on the point attacking the order impugned that by way of the present amendment the respondent/plaintiff wanted to introduce a new case, which cannot be permitted as the same will change the nature of the suit. The petition is contested by the respondents on the ground that pursuant to the raising of the construction over the suit land by the petitioner, the plaintiff has brought this amendment in order to avoid further litigation which is only in the nature of supplementing the facts and in -conformity with the subsequent events added the prayer of mandatory injunction to avoid any future complications
(3.) ON hearing the learned counsel for the respective parties, I find that the order passed by the learned trial court does not suffer from any jurisdictional error. On the very face of it, it is found by the learned trial Court that the amendment is in consequence of the subsequent events, which took place during the pendency of the suit on account of the construction raised by the petition/defendant on the suit land. Learned counsel for the respondent plaintiff in support of his contention placed reliance on an authority of their Lordships of the Supreme Court reported in A. I. R. 1983 S. C. 390. It is now settled law that the amendment, which is not barred by time or which is not barred by any law can be allowed, which is necessitated to decide the real controversy in the suit. Such an amendment, which is based on subsequent events is to be allowed in order to shorten the litigation. There Lordships of the Supreme Court in M/s M. Laxmi & Co. Vs. Dr. Anant R. Deshpande, reported in A. I. R. 1973 S. C. 171 have held : - (Para -27) "It is true that the Court can take notice of subsequent events. These cases are where the court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. Where the original relief has become inappropriate, by subsequent events, the Court can take notice of such changes, if the Court finds that the judgment of the Court cannot be carried into effect because of changes of circumstances the Court takes notice of the same. If the Court finds that matter is no longer in controversy the Court also takes notice of such events. If the property which is the subject -matter of suit is no longer available the Court will take notice of such events. The Court takes notice of subsequent events to shorten litigation, to preserve rights of both the parties and to sub serve the ends of justice." To apply the dictum on the facts and circumstances of the present case, I find that in the instant case by the order of the High Court on an undertaking by the petitioner/defendant, he was permitted to raise the construction over the suit land in pursuance whereof the petitioner has raised construction, which is undoubtedly an event which took place subsequently during the pendency of the suit. This subsequent event of such a nature of which the court can take notice and in order to shorten litigation and to meet the ends of justice, the plaintiff/ respondent is permitted by way of the present amendment to bring his suit in -conformity with the events which took place during the pendency of litigation and have added the prayer of mandatory injunction detailing the grounds to be added by way of amendment, by no stretch of imagination changes the nature of the suit, which is rightly allowed by the learned trial Court. Nothing has been shown by the petitioner to point out that the order impugned suffers from any sort of illegality or lack of jurisdiction. Thus in my opinion there is no merit in the present revision, the same is, therefore, dismissed with no order as to costs. The record of the trial court be sent back|forth with. Parties through their counsel are directed to appear before the trial Court on 16th of June, 1986.;


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