O.K.Seth, J. - (1.) The plaintiff-petitioner in this petition had filed a suit being Original Suit No. 297 of 1996 for injunction restraining the respondent No. 3 from raising any construction over the 'Abchak' land in the south of the petitioner's house and from encroaching thereupon, in any manner. The said suit was filed in the Court of Civil Judge, Junior Division, Moradabad. In para 2 of the plaint, it was alleged that on the southern side of the house of the petitioner there is Abchak which is about one meter wide and twenty three meters long and upon which the petitioner is discharging water through his drainage from long before. In para 11 of the plaint, he has claimed that he has easementary right to discharge water on the said 'Abchak'. The suit was simple suit for injunction against the private defendant. This amendment was disallowed by the learned trial Court by an order dated 18.9.1996. Against the said order dated 18.9.1996 a revision was moved being Civil Revision No. 126 of 1996. By an order dated 28th May. 1997 the said revision was dismissed and the amendment was disallowed. It is against these orders the present writ petition has been moved.
(2.) Sri Ved Byas Mishra, learned counsel for the respondents, took a preliminary objection that the original suit being suit for injunction, the writ petition is not maintainable. Inasmuch as in view of the ratio decided in the case of Ganga Saran v. Civil Judge, Hapur, wherein it has been held that the suit for injunction is in effect a relief against the private person and, therefore, no writ can be maintained in respect of such suit. In order to obviate the difficulty, the learned counsel for the petitioner Sri Dhruva Narayana, sought for leave to amend the writ petition into one under Article 227 of the Constitution. In the facts and circumstances of the case, leave is granted.
(3.) Sri Dhruva Narayana, learned counsel for the petitioner contends that the order refusing amendment is wholly illegal and irregular. In fact both the learned courts below have failed to exercise their jurisdiction vested in them. Therefore, the said orders are to be set aside. Inasmuch as by reason of amendment neither nature nor character of the suit is changed. May be an alternative case has been made out. The suit remains suit for injunction. The only alternative ground or pleading, as sought to be made out in respect of relief for injunction. Even then according to him no relief in the form of declaration of right has been asked for. The simple prayer made in the plaint is that of injunction and nothing else. Therefore, reliance having placed on the decision in the case of Shri Niwas Ram Kumar v. Mahavir Prasad & Ors, he contends that even alternative pleadings are permissible.;