IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 234 of 2001 Reserved on: 12.12.2008 Date of decision: 02.01.2009 Guljari Lal ... Petitioner Versus Pardeep Salhuria & Ors. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the petitioner: Mr. Y.P. Sood, Advocate. For the respondents: Mr. K.D. Sood, Advocate, for L.Rs of respondent No. 1 and for respondents No. 2 and 3. V.K. Ahuja, J.: This is a Civil Revision filed by the petitioner under Section 115 C.P.C. against the order dated 12.6.2001 passed by the learned Senior Sub Judge, Kullu, allowing the application filed by respondent No. 1/plaintiff for amendment of the plaint. Briefly stated, the facts of the case are that respondents No. 1 to 3 hereinafter referred to as the plaintiffs filed a suit as against the petitioner who was impleaded as a defendant. The plaintiff filed the suit for permanent prohibitory injunction as against the defendant/petitioner from changing the nature of the suit property, from raising any sort of construction , additions or alterations in the existing 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 structures or removing the debris of the collapsed structures lying on the suit land measuring 0-2 biswas, contained in Khasra No. 1528. The plaintiffs alleged that the land in suit is recorded in the ownership of the plaintiffs in equal shares and is entered in possession of Sant Ram, father of the defendant on payment of yearly rent of Rs.36/-. It was alleged that the revenue entries showing the deceased Sant Ram as tenant of the suit land are not correct. It was alleged that said Sant Ram, now dead, was inducted earlier as a tenant of the structure standing on the portion of the suit land and the rent was being paid by the defendant to plaintiff No.1 against receipt. It was alleged that the defendant is the tenant over the suit land and was occupying the same as tenant, but he has no right to change the nature of the same or to make any additions, alterations or to renovate the same or raise any new construction. It was further alleged that the suit property which was Katcha and old had collapsed, the defendant has started demolishing the remaining structure and raising new construction over the vacant land in possession of the plaintiffs to which the defendant had no right, hence, the suit for permanent injunction filed by the plaintiffs. The defendant filed written statement and pleaded that the suit is not maintainable since the defendant has become owner of the suit land by virtue of the H.P. Tenancy and Land Reforms Act, 1972 and the entries showing the plaintiffs as owners are wrong and illegal. It was pleaded that the entries showing the predecessor-in- interest of defendant Sant Ram as tenant are correct, who died in the year 1973 and thereafter, the present defendant has stepped into his shoes. The defendant also pleaded that he has raised single 3 storeyed house and one Khokha over the suit land and since the defendant has become owner and the plaintiffs are no more the owners, they are not entitled to the relief claimed by them. The suit was being tried by the learned trial Court and firstly, an application under Order 23 Rule 1 C.P.C. was fled by the plaintiffs for withdrawal of the suit with permission to file the fresh suit on the same cause of action. The said order is not under challenge and, therefore, only brief reference is being made to the said application, which was filed alleging that there was a formal defect and the plaintiffs be permitted to institute a fresh suit on the same cause of action. After taking reply from the defendant, the learned trial Court, dismissed the said application. Thereafter, the present application was filed by the plaintiffs for amendment of the plaint. By the proposed amendment, the plaintiffs wanted to take up the plea that after the death of Sant Ram, his tenancy rights were inherited by his widow Smt. Nardu Devi and defendants and Smt. Nardu Devi also died in 1983 and her interest also fell in the hands of defendants. It was also proposed to take the plea of amendment that defendants 2 to 4 wanted to surrender their tenancy right and defendant No. 2 showed his willingness to continue as tenant in case the plaintiffs construct kitchen etc. It was constructed by the plaintiffs in the year 1984 and a new tenancy was created in favour of defendant No. 1, while defendants No. 2 to 4 had surrendered their tenancy right. The learned trial Court after taking reply from the defendant allowed the application for amendment of the plaint subject to Rs.300/- as costs. Being aggrieved, the petitioner/defendant has filed the present revision petition. 4 I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the petitioner were that by the proposed amendment the entire controversy will be changed and a new plea is being raised by the plaintiff in regard to surrender of tenancy by some of the defendants and by the proposed amendment, the nature of dispute will be changed and as such, the impugned order allowing the application for amendment of the plaintiff is liable to be set side. On the other hand, the learned counsel or the respondents submitted that the application has been filed at the initial stage when even the replication has not been filed by the plaintiff. It was also submitted that earlier the application filed by the plaintiffs for withdrawal of the suit and permission to file the same on same cause of action was opposed by the petitioner/defendants and as such, the plea now sought to be raised by the plaintiff could not be raised by filing a fresh suit. It was submitted that the proposed amendment will not change the nature of the suit and since all the controversies in between the parties in regard to the suit property are to be decided in this lis, the application was rightly allowed by the learned trial Court. To substantiate his above submissions and to supplement it by the submission that the application for amendment can be allowed at any stage, the learned counsel for the respondents had relied upon the following decision. The decision in Ragu Thilak D. John Vs. S. Rayappan and others, (2001) 2 Supreme Court Cases 472, shows that even the relief sought was barred by law of limitation. It was held by the Apex Court that amendment should still be allowed. 5 The observations made in Para – 6 are relevant and are being reproduced below:- “The amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for.” From the above discussion of the facts of the case, it is clear that the dispute is in regard to the nature of possession of the defendants over the suit property, which was allegedly rented out to the father of the defendant, who was a tenant over the land. The dispute is in regard to this property over which some structure exists and all the questions at to whether the defendant is in possession as a tenant or as an owner or some new construction has been raised by the defendant or the tenancy in question was surrendered by the defendant in favour of the plaintiffs are to be determined in the present suit itself. The plaintiff cannot be compelled to file a separate suit in regard to the same suit property simply because he wants to take a plea of surrender of tenancy or connected pleas in regard to the suit property itself. The decision of the Apex Court in the above mentioned case also show that the dominant purpose of allowing the amendment is to minimize the litigation and for the same property, the plaintiffs cannot be compelled to file a separate suit. All the defences that are available to the defendant shall be available to him in reply to this amendment including the delay in question, if any, in filing the said application and as such, for just determination of dispute in between the parties, I am 6 of the opinion that the impugned order passed by the learned trial Court allowing the application for amendment does not suffer from any illegality and, therefore, it calls for no interference by this Court. The application has been filed at the earliest and does not suffer from any such latches to hold that it should not be allowed at this stage. In view of the above discussion, I accordingly hold that there is no merit in the revision petition filed by the petitioner, which is dismissed accordingly. However, the parties are left to bear their own costs. Parties to appear before the trial Court on 16th February, 2009. In view of the dismissal of the main revision petition, CMP No. 318 of 2001 has become infructuous and stands accordingly disposed of. V.K. Ahuja ) January 02, 2009 Judge (BSS)