HIGH CQURT OE QUDICA!URE C HErT§§ARH: QILA§EE W. P. {CLNO 3005 9f 200i Petitioners ‘ : Kamta Prasad Sen & others Versus Respondents : Rajmanti @ Rajva & another ¥ *A Post for order on ,2§June. 2007. 2 811/: ; r Satish K.Agnih0tri " ¥ Judge 5 AFR HIGH CQUBT OE CHHATTISG& AT BIMSPUR W‘P. (C) No‘ 3005 of 2007 SB: Hon'ble Mr. Justice Satish K. Agnihotri,‘ Shri Prafuii Bharat, Advocate for the petitioners. Shri Sanjay K. Agarwal, Advocate for the respondents. O R D E E (Passed on this2 s’ ,day of June. 2007) 1. By this petition frted under Article 227 of the Constitution of India. the petitioners impugn the legality and validity of the order dated 3'1 .1 .2007 (Annexure P/4) passed by the Civil Judge. Class-Ii. Manendragarh. District Korea. on an application filed under Order 6 Rule 17 of the Code of Civil Procedure for amendment in the plaint. ‘2. The indisputable facts in nutshell are that the petitioner tiled a civil suit for declaration and permanent injunction on 1.7.1999. Written statement on behalf of the respondem No. 1 and 2 was filed on ‘ 23.7.1999. The petitioner, thereafter. med an application {Annexure P/3) on 7.3.2006 under Order 6 Rule 17 of the Code of Civil Procedure seeking amendment in the plaint by incorporating para 9-A as under:- Petitioners 1. Kamta Prasad Sen. S/o Late Raghuvir Prasad Sen, 65 yrs. 2. Pannalal Sen. Slo Kamta Prasad Sen, 48yrs. 3. Vijay Kumar San, Sio Kamta Prasad Sen. 30 yrs. Alt Rio Ward No.5, Manendragarh, Distt. Korea (C.G.) Versus Respondent 1. Raimanti @ Raiva‘ W/o Chintamani Sen. 50yrs. 2. Chintamani Sen. 5/0 Late Vasudeo Prasad Sen‘ 58 yrs Both R/o Ward no.17, Manendragarh, Distt. Korea (C.G.) @ "(a)ng%mnmw#mm Iim$mii$mmimmmmmm W gm$mmmw#mmm %wmar£tmadmwmwmum mm§m§¢ 3. That in the re£ief clause also the petitioner sought for amendment as - under:- “n3%mummmmréawai%m mwtmm" . That leamed trial Judge after hearing Ieamed counsel for the parties came to the conclusion that the petitioner was aware of the fact of putting the lock on the suit property over the lock of the» petitioner. Therefore. the subsequent amendment seeking for a relief for possession was not ius‘titied. Accordingly. the same was reiected under proviso to Rule 17 of Order 6 of the C.P.C. . Learned counsel appearing for the petitioners would submit that during the pendency of the suit the respondents (defendants) had put the lock over the lock of the petitioner and had forcibly taken the possession of the suit premises. Thus. accordingly. the amendment was sought in the suit with the prayer for possession. . Learned counsel appearing for the respondents would submit that this petition be alloWed so that the suit can be disposed. of expeditiously. . Having heard learned counsel for the parties and perusing the documents appended to the pleadings. it is apparent that if the amendment. as sought for by the petitioners is not allowed. the suit for declaration and permanent iniunction would be untenable. @ 8. The Hon’ble Supreme Court in the matter of Sampath Kumar v. Ayyakamu‘ , observed as um: “7. In our opinion‘ me basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature oi reiiei sought for by the phintifi. In the opinian uf the trial Court it was apart to the piaintiff to me a fresh suit and that is one of‘the reasons which has prevaited with the tiiai Court and with the High Court in refusing the piayer ici- amendment and also in dismissing the piaintin‘s revision. We fail to understand, if it is permissibie for the piaintiii to tiie an independent suit, why the same reiiet which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. in the iacis and circumstances oi the present case. allowing the amendment would curtail multipiicity of legal proceedings.” it was further observed , as under:- “11. in the present case the amendment is being sought for almost 11 years aher the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking reiief of declaration of titie and recovery of possession on the same basic facts as are pieced in the piaint seeking relief of issuance of permanent prohibitory injunction and which is pending. in order to avoid muitipiicity oi suits it would be sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has aileged the cause of action for the reiieis now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way oi amendment are not to be judged at the stage of aliowing' prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse ‘ possession then the right so accrued shouid not be aliowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by exciuding a period of about 11 years in calculating the period of the prescriptive title ciaimed to have been eamed by the defendant. The interest of the defendant can be protected by direaing that so far as the possession, now sought for. are concerned the prayer in that regard shall be deemed to have been made on the date on which the appiication for amendment has been tiled. 9. Further. in the matter of Mehar Chand Das v. Lal Babu Siddique & Ore}, the Hon’ble Supreme Court in regard to the tenability of the suit Thakur @ for deciaration‘ without chiming the relief for possession‘ observed as under: "9. section 34 of the Specmc Relief Act. 1963 feads as under: “Discretion of Court as to declaration of status or n’ght.- Any person entitied to any legai character, or to any right as to any property, may institute a suit against any person denying. or interested to deny, his title to such character or right. and the Court may in no discretion make therein a deciaration that he is so . entitied, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shaii make any such declaration where the plaintiff, being able to seek further relief than a mere declaration oi title. omits to do so.“ "12. The High Court. in our opinion‘ committed a manifest error in not relying upon the decision of this Court in Vinay Krishna (supra) the said decision categorically lays down the law that if the plaintilt had been in possession then .a suit for more declaration would be maintainabie: the logical corollary whoreot‘would be that if the plaintiff is not in possession, a suit for mere declaration would not be maintaina .“ 10.Having regard to the facts and circumstances of the case wherein the suit was med for declaration and permanent iniunction, was tenable when the plaintiffs (petitioners) were in possession. During the pendency of the suit‘ it appears that the possession was taken over by the defendants thus the suit has become untenable if the appropriate relief for amendment‘ as prayed for. is not granted. 11.Looking from all angles the petition deserves to be and is allowed. In the facts and circumstances of the case. there shall be no order as to i sol/— costs. ‘ ' Satrsh K.Agnihotri 5 Judge (Ala 2002 so 3369)‘ (2007 AIR scw 2024f ‘ i