RAJIV SHARMA,J - (1.) HEARD learned Counsel for the opposite parties.
(2.) LEARNED Counsel for the petitioner submits that the petitioner filed a regular suit no. 144 of 1998 for permanent injunction along with an application for temporary injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. On 9.8.1999, Advocate Commissioner so appointed by the trial Court submitted his report and map, stating therein that new construction were being made over the land in suit. The said report has been confirmed subject to evidence. On 19.5.2009, plaintiff-petitioner's evidence was closed and on 9.7.2009, defence evidence was started but could not be completed due to adjournment sought by the defendants. Thereafter, on 8.9.2009, an application for amendment under Order VI Rule 17 of the Code of Civil Procedure was filed by the plaintiff/petitioner, praying therein that he may be permitted to describe the land in suit by the letters started in the commissioner's report and map of the Advocate Commissioner to give a clear description of the land in suit as provided under VII Rule 3 of the Code of Civil Procedure and as required in law laid down by the Apex Court. The Civil Judge (Senior Division), Unnao, vide order dated 17.9.2009, rejected the amendment application, against which, a revision was filed before the District Judge, Unnoa, who, vide order dated 15.4.2009, also dismissed the same. Feeling aggrieved, the petitioner has filed the instant writ petition inter alia on the grounds that the courts below acted illegally in the exercise of their jurisdiction in refusing to permit amendment of the plaint to make it in consonance with the provision contained in Order VII Rule 3 of the Code of Civil Procedure and to provide a clear description of the property in dispute. Placing reliance on [AIR 2002 Supreme Court 3369] Sampath Kumar vs. Ayyakannu and another; [2004 (6) Supreme Court Cases 415] Pankaja and another vs. Yellapa (Dead) by LRS. And others; [AIR 2002 SC 559] Prem Bakshi and others Versus Dharam Dev and others; [JT 2007 (9) SC 244] Andhra Bank Vs. ABN Amro Bank N.V. and Others; JT 2006 (3) SC 607 Rajesh Kumar Aggarwal and Ors. V. K.K. Modi and Ors.; [AIR 2001 SC 3295] M/s Estralla Rubber Versus Dass Estate (Pvt.) Ltd.; AIR 2000 Supreme Court 614 :B.K.N.Pillai Versus P.Pillai and another; AIR 1969 Supreme Court 1267 Jai Jai Ram Manohar Lal Versus National Building Material Supply, Gurgaon and (1975) 1 Supreme Court Cases 770 Pasupuleti Venkateswarlu Versus The Motor and General Traders, learned Counsel for the petitioner submitted that no doubt jurisdiction to allow or not to allow an amendment is discretionary but the same will have to be exercised in a judicious manner after evaluation of the facts and circumstances in which the amendment is sought. The Hon'ble Supreme Court as also this Court in several decisions has laid emphasis on the fact that if the granting of an amendment really serves the ultimate cause of justice and avoids further litigation, the same should be allowed.
(3.) ON the other hand, learned Counsel for the respondent contended that there is neither any illegality nor infirmity in the impugned orders passed by the Trial Court which has been approved by the revisional Court. Further, the amendment which has been sought by the petitioner, if allowed, it will change the nature of the plaint, which is not permissible under law.;