WPMS No.2937 of 2001 (Old No.27575/94) Hon’ble Tarun Agarwala, J. Heard Mr. Sharad Sharma, the learned senior counsel assisted by Mr. Vipul Sharma, the learned counsel for the petitioners, Mr. Sudhir Kumar, the learned brief holder for the respondent no.1 and Mr. M. S. Tyagi, the learned counsel for the respondent nos.2, 3, 5 & 6. The respondent plaintiff filed a suit for permanent injunction against the petitioner University with the prayer that the petitioner University should be restrained from interfering with the possession of the plaintiff over the land in question. The plaintiff also claimed easementary right over it. On the other hand, the University claimed that they are the owners of the property. The suit was dismissed against which the plaintiff filed an appeal. During its pendency, the petitioner University constructed a boundary wall demarcating the property. Accordingly, an amendment application was filed by the plaintiff for amending his plaint. The amendment was sought in para 2 & 4 of the plaint as well as in the prayer clause. Objections were raised by the petitioner University and, after due consideration, the amendment was allowed on payment of cost by an order of 04th October, 1993. The defendant University, being aggrieved by the order allowing the amendment application, has filed the present writ petition. The short contention raised by the learned senior counsel for the petitioner is, that the amendment sought by the plaintiff changes the nature of the suit and that by such amendment, the suit of permanent injunction has now become a suit for the removal of the boundary wall. It was further submitted by the learned senior counsel for the petitioner that certain new facts have been added in amendment application, which were in the knowledge of the plaintiff from the very beginning and which could not be added at the stage of appeal. It was vehemently contended that the nature of the suit have been changed, which cannot be permitted. Upon hearing the learned counsel for the parties and upon a perusal of the plaint as well as the amendment sought under Order VI Rule 17 of the Code of Civil Procedure, the court finds that the amendment made in paragraph 1 & 2 does not change the nature of the suit nor such addition materially affects the rights of the petitioner. In paragraph 4 of the plaint, the plaintiff had alleged certain easementary rights, which were now sought to be withdrawn and substituted by a fresh paragraph claiming that the boundary wall so constructed on the land in question should -2- be removed since the same was constructed after the dismissal of the suit and during the pendency of the appeal. On the basis of these averments made in paragraph 4, the plaintiff sought amendment in the relief clause and prayed that the boundary wall so constructed by the University should be demolished and the land be restored in his favour. In the opinion of the court, the amendment in para 4 of the plaint as well as in the relief clause does not change the nature of the suit. Such prayer is permissible on account of new facts which has come into existence after the dismissal of the suit and during the pendency of the appeal. The court finds that the trial court had allowed the amendment on the ground that the facts sought to be incorporated came to the knowledge of the plaintiff subsequently. In the light of the aforesaid, this court does not find any merit in the writ petition and is dismissed. Registry is directed to send a certified copy of this order to the lower appellate court immediately within two weeks from today. The lower appellate court is directed to decide the appeal within four months from the date of receipt of the certified copy of this order. (Tarun Agarwala, J.) Dated 07.12.2011 LSR