C.R. No.6335 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.6335 of 2008 Date of decision:17.12.2009 Gurmukh Singh .......Petitioner versus Gram Panchayat, Kachhwa ....Respondent Coram:- HON'BLE MR. JUSTICE L. N. MITTAL. Present: Mr. J. S. Saneta, Advocate for the petitioner. Mr. Nonish Kumar, ADvocate for the respondent. L. N. MITTAL, J (ORAL) Plaintiff Gurmukh Singh has filed this revision petition under Article 227 of the Constitution of India assailing order dated 20.10.2008 (Annexure P-6) passed by learned Additional Civil Judge (Senior Division), Karnal thereby dismissing the plaintiff's application for amendment of plaint. The plaintiff filed suit against respondent-Gram Panchayat for permanent injunction seeking to restrain the defendant from digging out/constructing Nala (drain) in suit plot of the plaintiff. By way of amendment application, the plaintiff wanted to plead that during the pendency of the suit and in spite of temporary injunction order, Sarpanch of defendant-Gram Panchayat along with her husband and two members of Panchayat forcibly dug out and constructed Nala/drain in the suit plot and also illegally and forcibly damaged one room on eastern side of the plot. The plaintiff allegedly C.R. No.6335 of 2008 -2- made complaints to the police, but his signatures were obtained on blank papers in police station and also in the office of Block Development Officer. The plaintiff, therefore, wanted to also seek relief of mandatory injunction directing the defendant to remove the construction of Nala/drain and to restore the room of the plaintiff. Stand of the defendant in the written statement was that on 13.05.2000, on demarcation of Phirni of the village, it was found that some villagers including the plaintiff had encroached upon land of Gram Panchayat. For the benefit of public at large, the Gram Panchayat wanted to construct Nala over the disputed site to solve the problem of drainage of dirty and rainy water. Nala in the suit land was constructed by the respondent much prior to the filing of the suit and with the consent of the plaintiff. In reply to amendment application, stand taken in the written statement was reiterated. Allegations of the plaintiffs were controverted. It was also alleged that the suit has become infructuous. Learned trial Court vide impugned order dismissed the plaintiff's application observing that if amendment sought by the plaintiff was allowed, it would change the very nature of the suit because suit was pending since the year 2006 and encroachment had been removed way back before filing of suit. It was also observed that as per demarcation report, encroachment by the plaintiff on panchayat land is proved. It was also observed that plaintiff's version that Sarpanch of the Gram Panchayat illegally encroached on the plaintiff's land and raised construction of drain is C.R. No.6335 of 2008 -3- not correct. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that the petitioner had to seek amendment of plaint in view of subsequent events which took place during the pendency of the suit. On the other hand, learned counsel for respondent vehemently contended that trial Court has recorded a finding that the plaintiff had encroached upon the land of the defendant and drain had been constructed prior to the filing of the suit. I have carefully considered the rival contentions. The approach of the trial Court in passing the impugned order is completely illegal and unsustainable. Without recording evidence, no finding could be recorded merely on the basis of demarcation report that the plaintiff had encroached upon the land of Gram Panchayat nor any finding could be recorded that the Nali stood constructed prior to the filing of the suit. On the other hand, after proposed amendment is allowed and evidence is led by the parties, only then the trial Court can arrive at a conclusion as to whether the Nali was constructed prior or subsequent to the filing of the suit. The proposed amendment is sought on the basis of subsequent events which allegedly took place during the pendency of the suit. Mere allowing of proposed amendment in the plaint would not mean that the plaintiff's version has been accepted or held proved. It would only enable the plaintiff to lead evidence in support of the said version. Even after amendment is allowed, the plaintiff has to prove C.R. No.6335 of 2008 -4- the averments which he wants to make by way of amendment. In view of the aforesaid, the instant revision petition is allowed and impugned order dated 20.10.2008 (Annexure P-6) passed by learned Additional Civil Judge (Senior Division), Karnal is set aside and plaintiff's application for amendment of plaint is allowed, subject to payment of Rs.2000/- as costs precedent. ( L. N. MITTAL ) JUDGE 17.12.2009. A.Kaundal