- (1.) TARUN Agarwala, J. Heard Sri B. B. Paul, the learned Counsel for the petitioners and Dr. H. N. Tripathi, the learned Counsel for respondent No. 3.
(2.) THE plaintiff respondent No. 3 filed a suit for declaration and for permanent injunction praying that he should be declared the owner of M/s. Chhotey Lal Dinesh Kumar Tent House as well as of the Guest House. It was alleged that the property in question was purchased from his own funds and that the defendant had nothing to do with it. In paragraph 10 of the plaint, it was alleged that the defendant was threatening to take the possession of the property in question. It transpires that on the application for grant of temporary injunction, the matter came up to the High Court which was disposed of by an order dated 22-4- 2003 directing the parties to maintain status-quo and the petitioner, namely, the defendant was further directed not to alienate the property in question during the pendency of the suit. Before the trial Court, the plaintiff moved an application for an amendment of the plaint under Order 6 Rule 17 of the C. P. C. In the application, it was mentioned that during the pendency of the suit, the defendant had taken forceful possession of two rooms and, therefore, on account of the subsequent event, the plaint was required to be amended in order to bring the subsequent facts on the record. The plaintiff also prayed for an additional relief, namely, that the defendant should be ejected from the two rooms which he had taken forceful possession and that the possession be restored to the plaintiff. The petitioner filed his objection. The trial Court after hearing the parties allowed the amendment application. The defendant being aggrieved by the aforesaid amendment, filed a revision which was also rejected. Consequently, the present writ petition. The learned Counsel for the petitioners submitted that the amendment sought completely changed the nature of the suit. The suit was filed for declaration and for a permanent injunction and, by this amendment, the suit has changed to a suit for ejectment and for possession which could not be allowed as it changes the nature of the suit. It was further urged that the amendment sought was not a bona fide amendment nor was it done in good faith, inasmuch as, the amendment sought was patently vague as it did not disclose as to when the defendant had allegedly taken the possession of the two rooms in question. Consequently, the learned Counsel for the petitioner submitted that such a vague amendment should not be allowed by the trial Court.
(3.) THE learned Counsel for the petitioner further submitted that the amendment sought was not necessary as it did not determine the real question involved between the parties and therefore, the amendment could not be allowed in view of the provisions of Order 6, Rule 17 of the C. P. C. In support of his submission the learned Counsel for the petitioner has relied upon various decisions which are quoted herein under : In Nrisingh Prosad Paul v. Steel Products Ltd. , AIR 1953 Calcutta 15, the Court held that the amendment should be allowed where it determines the real controversy involved in the suit. THEre is no quarrel with the proposition evolved in the aforesaid judgment. THE amendment should always be allowed where it is necessary for the Court to determine the real question in controversy between the parties. THE question for consideration before this Hon'ble Court is, whether the amendment sought was necessary for the purposes in determining the real question in controversy between the parties and whether the amendment in fact changed the nature of the suit or not ? In the opinion of the Court, the amendment application was rightly allowed. The said amendment does not changes the nature of the suit, nor the amendment is vague. From a perusal of the plaint allegation, a declaration was sought on account of the fact that the defendant was threatened and was trying to encroach in the possession of the plaintiff. In paragraph 10 of the plaint, it was urged that the defendant was trying to take forceful possession of the property in question. Consequently, if during the pendency of the suit, the possession of a portion of the property is taken, the said fact was required to be brought on regard by means of an amendment application. In the opinion of the Court, such an amendment does not change the nature of the suit and was necessary for determining the real question involved between the parties. In view of the aforesaid, the Court is of the opinion that the amendment sought was bona fide.;