IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No.116 of 2008 Date of Decision: 23.6.2008 ________________________________________________________________ Sh.Gagan Chand and others … Petitioners Versus Sh.Jagat Ram and others … Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? No For the Petitioner (s) : Mr. Onkar Jairath, Advocate. For the Respondents : None ________________________________________________________________ Deepak Gupta, J.(Oral) Respondents not present despite service. Hence, the matter is being decided in their absence. The present petition under Article 227 of the Constitution of India has been filed by the petitioners (hereinafter referred to as the plaintiffs) against the order dated 13.11.2007 rejecting the application filed by the plaintiffs for amendment of the plaint. The plaintiffs filed the main suit in the month of May, 2005. In the suit the plaintiffs prayed for the grant of decree for permanent injunction restraining the defendants from encroaching upon, changing the nature and character or interfering in the suit land. They also prayed that the 2 defendants be restrained from cutting and removing the trees and be also restrained from carving out any passage/road in the suit land. Alongwith the suit an application for interim relief was filed and a stay order was granted in favour of the plaintiffs restraining the defendants from in any manner changing the nature of the suit land. The defendants contested the suit. They stated that they had no concern whatsoever with the suit land and therefore the question of encroaching or trying to carve road in the suit land does not arise. Thereafter, the plaintiffs filed an application under Order 6 Rule 17 CPC. In the application it was alleged that after filing of the suit and after the stay order was passed, the defendants had in fact carved out a path on the suit land and it was prayed that they may be permitted to amend the plaint. The effect of the amendment would be that the plaintiffs now seek possession over the land marked with letter ABCD which according to the plaintiffs is a path carved by the defendants out of the suit land during the pendency of the suit. This application was contested and the learned trial Court rejected the application. I have totally failed to comprehend the reasons given by the learned trial Court 3 while rejecting the application. The Trial Judge has observed and rightly so that the rule qua amendment confers a wide discretion on the Courts in the matter of amendment. However, the trial Court has further observed that wider the discretion, greater is the possibility of abuse and hence the discretion should be exercised with due care and circumspection. The trial Court has come to the conclusion that the amendment will not make any difference in the pleadings. The plaintiffs alleged in the suit that the defendants are threatening to carve out a road on the suit land. According to the plaintiffs despite stay order having been granted the defendants have in fact carved out a path in the suit land. They therefore claim decree for possession. The amendment in these circumstances had to be allowed. The order of the learned trial Court rejecting the amendment is illegal and contrary to the settled law in respect of the amendment of pleadings. The proposed amendment does not change the nature of the suit. The amendment is also necessary to decide the real controversy between the parties. In case, what is said by the plaintiff in his application is correct and the defendant has carved out a path in the suit land then in 4 case the amendment is not allowed the suit itself will become infructuous. Keeping in view the above discussion, this petition is allowed. The order of the learned trial Court dated 13.11.2007 is set-aside, the proposed amendment is allowed and the amended plaint is ordered to be taken on record. The petition is disposed of in the aforesaid terms with no order as to costs. June 23, 2008. ( Deepak Gupta ),J. PV