Civil Revision No. 2768 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2768 of 2006 Date of decision: 12.08.2009 Lakmi and others ....Petitioners versus Karam Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. B.R. Vohra, Advocate, for the petitioners. Mr. Vikram Punia, Advocate, for the respondent. *** VINOD K. SHARMA, J.(ORAL) This revision petition is directed against the order dated 17.4.2006, passed by the learned Additional District Judge, Sonepat, vide which two applications moved by the plaintiff/respondent stand allowed. The plaintiff/respondent filed a suit seeking permanent injunction, by pleading that he is owner in possession of the plot detailed in para No. 1 of the plaint, by virtue of gift deed dated 18.4.1983 issued by the Government of Haryana. It was alleged, that the defendant/petitioners were interfering in his possession, therefore, decree of permanent injunction was prayed for. Civil Revision No. 2768 of 2006 -2- The suit was contested by defendant/petitioners, wherein claim of ownership and possession was denied. It was pleaded by the defendant/petitioners that they were owner in possession of the plot in dispute for the last 19 years, when their father Sh. Began was allotted the said property by Sh. Mahabir , the then sarpanch of the village, in presence of others. It was further pleaded by the defendant/petitioners, that it was plaintiff/respondent, who tried to dispossess them on 6.5.1997 with the help of the local police, but he failed in his efforts. The learned trial Court was pleased to frame the following issues: - “1. Whether the plaintiff is in possession of the suit property? OPP 2. Whether plaintiff has no locus standi to file the present suit? OPD 3. Whether the plaintiff has no cause of action to file the present suit? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Relief.” The parties led evidence, and the learned trial Court dismissed the suit, by holding that the plaintiff was not in possession of the suit property, which was, in fact, in possession of the defendant/petitioners. Issues No. 2 and 3 were not presses, whereas in view of the finding recorded on issue No. 1, issue No. 4 was decided in favour of the petitioners. The plaintiff/respondent preferred an appeal, where he sought recasting of issue No. 1 and also amendment of the plaint seeking addition of para No. 1 in the prayer clause to the effect that if defendants Civil Revision No. 2768 of 2006 -3- succeed in dispossessing plaintiff illegally or forcefully or if the Court comes to the conclusion that the plaintiff was not proved to be in possession of the plot in dispute, decree for possession be granted in the alternative. The learned lower appellate Court allowed both the application and framed the following additional issues: - “1A. Whether plaintiff is owner in possession of the suit property? OPP. 1B. Whether defendants are owners in possession of the suit property due to their continuous possession for the last 19 years which is alleged to be without interruption, interference and hostile to the knowledge of everybody including plaintiff as alleged? OPD.” Application for amendment was also allowed. Learned counsel for the petitioners vehemently contends, that the additional issues framed do not arise from the pleadings of the parties, as the plaintiff only claimed relief of perpetual injunction, and issue No. 1 in this regard was framed, but the plaintiff/respondent failed to prove his possession. It is further the contention of the learned counsel for the petitioner, that issue No. 1 was also not relevant, as the question of title was not in dispute in a suit for possession, therefore, was not to be adjudicated as to who was the owner. Whether the petitioner/defendants perfected their title by way of adverse possession, was also not in issue, in a suit for injunction. There is force in this contention. Issue No. 1 took care of the fact whether the plaintiff/respondent was the owner in possession. Once his possession was not proved, the issue could not be reframed by the Civil Revision No. 2768 of 2006 -4- learned lower appellate Court nor was there necessity to frame additional issue No. 1B, as the claim was not pressed by the defendant. The suit filed was only for injunction and not for possession on the basis of ownership. The order passed by the learned Additional District Judge, framing additional issues deserves to be set aside. Ordered accordingly. The learned counsel for the petitioner also challenges the order vide which the plaintiff/respondent has been allowed to amend the plaint. The contention of the learned counsel for the petitioners is, that by way of amendment, the plaintiff/respondent could not fill in lacuna, as the suit filed by him was dismissed by the learned trial Court. It is also contended by the learned counsel for the petitioners, that a suit for injunction could not be converted into one for possession In support of this contention, the learned counsel for the petitioners has placed reliance on the judgment of this Court in Prem Chand Vs. Chetan Dass, 2006(1) RCR (Civil) 164, wherein this Court was pleased to lay down as under: - “7. Few of the principles established by various judicial decisions in respect of amendment of pleadings are: a) The parties should not be allowed to substitute one cause of action or the nature of the claim for another as claimed originally or should also not be allowed to change the subject-matter or the controversy in the suit; b) The parties should not be allowed to introduce by amendment an inconsistent or contrary plea to negate the facts originally admitted though a party may be allowed inconsistent plea on admitted facts by way of amendment; Civil Revision No. 2768 of 2006 -5- c) The amendment should not cause prejudice to the other side which cannot be compensated by way of costs; d) The parties should not be allowed amendment of a claim or relief which is barred by law of limitation when amendment is sought to be made as it defeats a legal.............................................. of a party. However, this may be allowed only in very exceptional circumstances when the facts of the case so warrant. 8. Each case relating to the amendment has to be decided on its own facts by applying the judicial precedents which govern amendment of pleadings. The principles are fixed but the application of the same varies according to facts of each case. The power is to be exercised by the Courts for the ends of justice and to prevent the abuse of process of the Court. 9. In the facts of the present case, it can be safely inferred that the trial Court has clearly fallen in error in allowing the amendment of the plaint tot he plaintiff-respondent. The plaintiff was well aware of the facts which are now sought to be incorporated in the plaint and further the amendment completely changes the nature of the suit from mandatory injunction to that of possession in the present case. The amendment causes prejudice to the rights of the defendant-petitioner and had been filed at this belated stage without any justified explanation.” There is force in contention of the learned counsel for the petitioners. The suit for injunction could not be changed into one for possession, in absence of any allegation, that it was during the pendency of the suit that the plaintiff/respondent was dispossessed. Civil Revision No. 2768 of 2006 -6- For the reasons stated, revision is allowed, impugned order is set aside and both the applications moved by the plaintiff/respondent are ordered to be dismissed. Revision allowed. (Vinod K. Sharma) Judge August 12, 2009 R.S.