C.R. No. 6420 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6420 of 2008 (O&M) Date of decision: January 28, 2009 Jai Singh and others .. Petitioners v. Jagir Singh and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Ashish Aggarwal, Advocate for the petitioners. ... Rajesh Bindal J. Prayer in the present petition is for setting aside impugned order dated 16.9.2008, passed by learned Civil Judge (Junior Division), Karnal, whereby the application for amendment of the plaint filed by the petitioners-plaintiffs was dismissed. Briefly, the facts are that the petitioners-plaintiffs initially filed a suit for permanent injunction restraining the respondents-defendants from encroaching upon the property owned by the petitioners-plaintiffs. However, during the pendency of the suit, some part of the area owned by the petitioners was encroached upon and the amendment was sought for claiming additional relief of mandatory injunction for removal of the malba of the construction so illegally raised. The application having been rejected by the learned court below, the petitioners have approached this Court. Service of the respondents was complete on 18.12.2008. However, on account of their non-appearance, they were proceeded against ex parte. Even today, when the case was taken up, no one has appeared for the respondents. Learned counsel for the petitioners submitted that as the cause of action to file the amendment had arisen during the pendency of the suit and to avoid multiplicity of litigation, the relief, which is incidental to the main relief claimed in the suit, was sought by way of amendment. However, the learned court below dismissed the application merely noticing the fact that the application was belated, which fact is not correct, as though the alleged encroachment was made by the respondents-defendants in the year 2002, however, the application could be filed only after a report of the Kanugo was received in June, 2006. Accordingly, C.R. No. 6420 of 2008 [2] there was no delay as such. He further submitted that the petitioners have not to lead any evidence in addition to what has already been led and it is only that a plea regarding factual aspect and also the prayer which are to be added in the plaint. Having heard learned counsel for the petitioners-plaintiffs, I find merit in the present petition. A demarcation report prepared by the Kunugo in June, 2006 has been placed on record and the application for amendment was filed thereafter. The relief, which is sought to be claimed, is for mandatory injunction directing the respondents-defendants for removing the encroachment which is connected with the property in dispute in the present case, regarding which the injunction was sought initially. In my opinion, amendment in the present case deserves to be allowed for the reason that cause of action for seeking possession arose during the pendency of the suit coupled with the fact that the stand of learned counsel for the petitioners-plaintiffs is that they have not to lead any evidence in addition to what has already been led and only the pleadings and the prayer clause in the plaint need to be amended. For the reasons mentioned above, the revision petition is accepted. The impugned order dated 16.9.2008 is set aside and the application filed by the petitioners-plaintiffs for amendment of the plaint is allowed. (Rajesh Bindal) Judge 28.1.2009 mk