A.S.BAINS, J. - (1.) THIS petition is directed against the order of the learned Sub -Judge Ist Class, Narnaul, dated 8th December, 1977.
(2.) THE plaintiff -petitioner, moved an application for amendment of the plaint and the only amendment sought for was that he was in constructive possession of the property in dispute. His application was dismissed solely on the ground or delay. Mr. Sarin, learned counsel for the petitioner, says that there has been no delay and the application for amendment cannot be dismissed merely on the question of delay. He says that the suit was filed in the year 1969 and it was dismissed by the trial Court on 11th December, 1972. That judgement was challenged by the plaintiff successfully and the case was remanded by the Appellate Court on 14th February, 1977 for decision on merits. Since the appeal remained pending for about four years before the Appellate Court the plaintiff was not at all responsible for the delay; that on remand the trial Court directed the plaintiff to affix Court fee on Rs. 10,000/ - on 1st June, 1977, that against that order the petitioner filed a revision petition in the High Court which was dismissed on 1st August, 1977 by Narula C.J. (as his Lordship then was) and the following order was passed : - "Cites Asa Ram and others v. Jagan Nath and others. (A.I.R. 194 Lah. 563 (F.B.). It is no doubt stated therein that in suit for partition of joint property where the plaintiff alleges that he is in actual or constructive possession thereof Court -fee would be payable under article 17(vi) of the second Schedule to the Court -fees Act. The condition precedent for paying Court -fees under that provision is that an allegation should be made about being in actual or constructive possession of some part of the property. The trial Court has said that there is no such allegation in the plaint. In this view of the matter, there is no ground to interfere with the order of the Court below. The learned counsel says that he would like to amend the plaint so as to take up a definite plea about the plaintiff being in constructive possession, as every member of a coparacenery is deemed to be in constructive possession. He may apply for amendment to the trial Court, if so advised. Dismissed." On 16th August, 1977, he filed an application for amendment of the plaint in view of the observations of the learned Chief Justice in the aforesaid order. I find merit in what Mr. Sarin says. As explained, there has been no unnecessary delay on the part of the plaintiff petitioner in moving the application for amendment of the plaint. This application for amendment has been moved in the light of the observations made by the High Court in its order reproduced above. It is settled law that the application for amendment cannot be dismissed solely on the ground of delay and that too when the delay is satisfactorily explained. The application for amendment can be disallowed if the amendment sought for changes the nature of the suit, But the amendment sought for in the present case does not change the nature of the suit at all.
(3.) NO other point is urged.;