M.M.KUMAR,J - (1.) THIS petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenges the order dated 18.1.1999, passed by the trial Court allowing an application filed under Order VI, Rule 17 read with Section 151 of the Code, which was preferred by the plaintiff-respondent No. 1.
(2.) BRIEF facts of the case are that the plaintiff-respondent No. 1 filed a Civil Suit No. 406 of 1996 on 23.12.1996, for declaration to the effect that he is co-owner in respect of the suit property being a co-sharer. The defendant-appellant had filed written statement. Thereafter issues were framed and the case was fixed for 14.9.1988 for evidence of the plaintiff-respondent No. 1, who in fact was granted last opportunity to bring his entire evidence at his own responsibility. He failed to produce any evidence and the case was adjourned to 12.11.1998 on payment of Rs. 50/- as costs. It was at this stage that an application for amendment of the suit was filed claiming exclusive ownership in respect of the house in question. In the application it was claimed that for want of proper legal advise and inadvertence the plaintiff-respondent No. 1 could not claim exclusive ownership of the house in question. He further asserted that the relevant writings between the parties and the father of the plaintiff-respondent No. 1 could not be brought on record. It is appropriate to mention that the litigation is between the brothers who are sons of one Bachna Ram and his widow Smt. Rakho. The plaintiff-respondent No. 1 further claimed that the proposed amendment would serve the interest of justice. However, the defendant-petitioner opposed the application by pleading that once the plaintiff-respondent No. 1 had conceded the defendant-petitioner to be a co- sharer then permitting him to plead that he was exclusive owner, would amount to withdrawal of the admission made in the earlier plaint. It was further claimed that the amendment in fact is the result of change in counsel who has virtually substituted a new case in place of the old one by changing the entire plaint. The trial Court after hearing the arguments allowed the application by imposing costs of Rs. 400/- by observing as under :- "5. I have considered the submissions addressed by both the learned counsel for the parties. The plaintiff has claimed his ownership over the whole house and he should be permitted to plead his case so that the defendants may not be taken by surprise. Defendants can be compensated in terms of money for the delay on behalf of plaintiff. The plaintiff is yet to record his statement and he can be put to cross-examination by the defendants to put them own case. The law of amendment is very liberal. Application is accepted subject to payment of Rs. 400/- as costs. Amended plaint is already on the file. Written statement be filed on 3.2.99. It is made clear that the plaintiff has already availed number of opportunities and after the framing of issues, the plaintiff will be given only two opportunities and he will ensure the presence of witnesses positively."
(3.) HAVING heard learned counsel for the parties, I am of the considered view that there is no merit in this petition and the same is liable to be dismissed. The plaintiff-respondent No. 1 in the earlier suit undoubtedly had made the prayer that he has been a co-sharer along with the defendant- petitioner and defendant-respondent No. 2 in the house in question. He has also claimed permanent injunction restraining the defendant-petitioner and defendant-respondent No. 2 from interfering in his peaceful possession over the first floor of the aforementioned house. The prayer made by the plaintiff-respondent No. 1 in the original plaint reads as under :- "Suit for declaration that the plaintiff is a co-sharer alongwith defendant Nos. 1 and 2 in the house which is situated in village Bharta- Ganeshpur, P.S. Mahilpur, Tehsil Garhshankar and bounded as below and marked as ABCD in the site-plan attached herewith. East :-, House of Shankar Dass West :-, House of Amar Singh North :, Property of Thakedar South :-, Street with consequential relief of permanent injunction restraining the defendants from interfering in the peaceful possession of the plaintiff over the first floor of the above-said house till its duly partitioned in the Court of Law." ;