j^ <^ .o^1" .l/ ^W^K IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (227 ) No. ^ ^ Of<3^08 ^TO BETWEEN ^ Smt. Ambika Devi W/o Shri Dwarika Prasad Shah, aged about 64 years, resident of Sadar Bazar, Bilaspur, Tahsil and District Bilaspur (CG). PETITIONER PLAINTIFP Versus 1. Manishanker Pandey, aged 39 years, S/o Late Shri Ramkhilawan Pandey, resident of Maharana Pratap Nagar, Tifra, Tahsil and District Bilaspur (CG). 2. Ashif Meman , aged about 32 years, S/o Hazi Abdul Rashid Meman, by caste Musalman , cultivator, resident of Fafadih Chowk, Raipur, Tahsil and District ^laspur (CG). k^(pt<,' 3. State of Chhattisgarh, through Collector, Bilaspur, Tahsil and District Bilaspur (CG). RESPONDENTS DEFENDANTS WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA ^o mGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra Writ Petition 1227) No. 49/2009 PETITIONER : Smt. Ambika Devi Versus RESPONDENTS : Mamshanker Piuidey and others Aooearance: Smt. Renu Kochar, eounsel for the petitioner. Shri Amit Kumar, counsel for respondents No.l and 2. Shri Sanjeev Agrawal, Panel Lawyer for tfae State/respondent No.3. WRIT PETITION UNDER ARTICLE 22f OF THE CONSTITUTION OF INDIA ORALORDER (03.09.2010) By the impugned order passed by the trial court, the plaintiffs application under Order 6 Rule 17 ofCPC for permission to amend the plaint has been rejected. (2) The plaintiff has preferred the suit on 2/01/2008 seeking a decree for a declaration that she is the owner in possession ofthesuit property and that the defendants be restrained from mterfering in her possession. The defendants have filed their written submission and thereafter the subject application under Order 6 Rule 17 ofCPC was submitted on 28/06/2008, before framing of the issues and before commencement ofthe trial seeking pennission ofthe court to amend the plaint to plead that there was an earlier litigation between the parties, which is binding on the defendants, that inspite of having ~Y / knowledge about the filing ofthe suit, the wall has been demolished '^ ^- ^ by the defendants on 7/01/2008 and inspite of grant of temporary injunction by the court on 26/04/2008, the defendants have raised a wall, kept on violating the temporary injunction and have illegally recovered possession on a part of the plamtiffs land. The plaintiff has also clarified the plaint map and has prayed that in addition to the eariier claimed deeree, the defendants be directed to restore tfae possession ofthe suit land as it was on the date offiling ofthe suit and in the event the defendants No.l and 2 do not obey the order, Ifae same be implemented with the help ofthe police. The plaintififis also praying for damages. By amending the verification, plaintiff is now proposing to amend Ihat Ifae facts stated in Ihe plaint have come to her knowledge on information by her husband and son instead ofher own knowledge which was eariier pleaded. (3) The trial court dismissed her application by obsen^ing that proposed amendment would change the nature ofthe suit. (4) In the matter of North Eastem Raflway Adnunistration, Gorakhpur Vs. Bhagwan Das (Dead) by LRS, (2008) 8 SCC 511, the Supreme Court has held that the prayer for amendment, ifmoved before commencement oftrial, should be liberally considered and the parties to the suit should ordinarily be allowed to plead all necessary facts in order to enable the eourt to adjudicate the dispute in a proper and efifective manner and also to avoid multiplicity oflitigation. ^^^"\ .^^ C.^1 •^^ "^^ ^ -3' (5) Counsel for the petitioner would submit that the court below has failed to exercise jurisdiction vested in it and has committed an error by considering the merits ofthe amendment. (6) Counsel for the respondent has submitted that tfae amendment is malafide. The plaintififwas aware ofthe development before filing of the suit and by proposed amendment a new case has been presented and that in any case the suit for declaration is now being converted into a suit for possession. (7) Having heard leamed counsel for the parties, Ifais court is ofthe o^inion that the proposed amendmenl, thougfa prays for an additional relief in the plaint, yet the same is based on subsequent event which has arisen after filing of the suit as stated in the amendment application. The amendments are in relation to the same suit property. If the amendments are not allowed, which has been filed before commencement oftrial, it will lead to multiplicity ofthe litigation. (8) It is settled law that while considering the prayer for amendment in the plaint, the trial court is not required to eonsider the merits of the amendment which the parties are required to prove in course of trial. Apparently, the proposed amendment pleads that the defendants No.l and 2 have obtained possessioa ofthe suit land after filing ofthe suit and afier grant oftemporary injunction by the trial court and it is based on subsequent events. Thus, the amendment should have been allowed by the trial court. -...^•"',; i ^ ^ -(A-- (9) Consequently, the impugned order is set aside. PlaintifFs prayer for amending the plaint is allowed. The plaintiff shall now amend the plaint within a period of 15 days from the date of presentation ofthe certified copy ofthis order before the trial court. The defendanl/respondents No.l and 2 shall be at liberty to raise appropriate pleadings as a eonsequence of the amendment in tiie plaint and shall also be entitled to raise all such legal objections which according to the defendant would disentitle the plaintiffto seek the reliefclaimed in the plaint by way ofamendment. Sd/- Prashant Kumar Mishra Judge ^A -'^r