SBCWP NO.6337/2006 – BHANWAR LAL AND ANOTHER V/S GORDHAN LAL AND ORS. : JUDGMENT DTD.19.8.2008 1/5 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.6337/2006 Bhanwar Lal and another. Versus Gordhan Lal and ors. Date of judgment : 19th August, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr.A.K. Rajvanshi, for the petitioners. Mr.B.L. Choudhary, for the respondents. --------- 1. This writ petition has been filed by the plaintiff being aggrieved by the order dtd.4.8.2006 passed by the learned trial Court rejecting the plaintiff's application for amendment in the plaint under Order 6 Rule 17 C.P.C. The learned trial Court has rejected the said application on the ground that the amendment sought by the plaintiff for adding para No.7A in the plaint for demolition of construction raised by the defendant on the disputed suit land during the pendency of the suit, will change the nature of the suit, from the suit for permanent injunction to the suit for mandatory injunction and therefore, the same cannot be permitted. 2. Mr. A.K. Rajvanshi, the learned counsel for the petitioner – plaintiff submitted that the learned trial Court has erred in rejecting SBCWP NO.6337/2006 – BHANWAR LAL AND ANOTHER V/S GORDHAN LAL AND ORS. : JUDGMENT DTD.19.8.2008 2/5 the application for amendment of the suit and there was no change of charater of the suit. Relying on the decision of the Hon'ble Supreme Court in the case of Baldev Singh V/s Manohar Singh and another reported in AIR 2006 (SC) 2832, he submitted that the approach of the learned trial Court in regard to amendment ought to be liberal and the amendment which takes care of the subsequent developments taking place during the course of the suit should be allowed to be liberally incorporated by amendment in the plaint to avoid multiplicity of litigation. 3. On the side opposite, Mr. B.L. Chauchary relying upon the decisions of Hon'ble Supreme Court in the following cases urged that the said application was filed belatedly and amendment if allowed would change character of the suit and therefore, the same could not be allowed by the learned trial Court. He relied upon the following decisions : i) 2001 DNJ (SC) 163 – Ayyappally Mohd. Haji and ors. V/s M.M. Abdulsalam and ors. ii) 2008(4) SCC 102 – Puran Ram V/s Bhagu Ram and anr. iii) 2008 AIR (SCW) 3192 – Bharat Karsondas Thakkar V/s M/s Kiran Construction Co. and ors. iv) 2008 AIR (SCW) 3225 – Chander Kanta Bansal SBCWP NO.6337/2006 – BHANWAR LAL AND ANOTHER V/S GORDHAN LAL AND ORS. : JUDGMENT DTD.19.8.2008 3/5 V/s Rajinder Singh Anand v) 2007 AIR (SCW) 513 – Ajendraprasadji N. Pande and anr. V/s Swami Keshavprakeshdasji N. and ors. vi) 2002(3) DNJ (Raj.) 1304 – Deen Dayal V/s Mangi Lal vii) 2008(2) Civil Court Cases (Punjab and Haryana High Court) 778 4. The ratio of these judgments relied upon by the learned counsel for the respondents is two fold: i) That the character of the suit should not change, if the amendment is allowed or amendment should not prejudice the case of the defendants; and ii) That the amendment should not be so belated that it is likely to prejudice the trial itself and the said amendment is contrary to the spirit of proviso of Order 6 Rule 17 C.P.C. 5. Having heard the learned counsels, this Court is of the view that the learned trial Court has erred in rejecting the application for amendment under Order 6 Rule 17 C.P.C. filed by the plaintiffs. The suit in question was filed for seeking permanent injunction against the defendants from encroaching upon the common plot of SBCWP NO.6337/2006 – BHANWAR LAL AND ANOTHER V/S GORDHAN LAL AND ORS. : JUDGMENT DTD.19.8.2008 4/5 land of the plaintiffs and the defendants who are brothers. During the pendency of the suit itself, the defendants raised the said construction and therefore, it became necessary for the plaintiffs to seek aforesaid amendment by adding para 7A in the plaint so that by mandatory injunction the said construction could be demolished under the decree of the Court, if the trial Court on the basis of evidence chooses to decree the suit. The said application for amendment also cannot be said to be much belated as the same was filed as soon as the plaintiffs came to know of the construction in question. In fact, this matter has been pending in this Court for over 2 years with the trial before the trial Court having been stayed on 16.11.2006 and therefore, it has further delayed the trial of the suit. The amendment in question also cannot be said to be changing the nature of the suit. It is true that the subsequent developments taking place during the pendency of the suit should be allowed to be incorporated in the pleadings so that multiplicity of the litigation is avoided. The defendants against whom injunction from encroaching over the common land sought, if is allowed to raise construction and which is not made subject matter of suit in question, it is bound to create confusion and multiplicity of litigation. The suit in question cannot be said to have advanced to the stage nearing conclusion of the trial and therefore, the learned trial Court ought to have allowed the amendment in question. 6. Consequently this writ petition is allowed and the SBCWP NO.6337/2006 – BHANWAR LAL AND ANOTHER V/S GORDHAN LAL AND ORS. : JUDGMENT DTD.19.8.2008 5/5 impugned order of the learned trial Court dtd.4.8.2006 is set aside and the amendment application filed by the plaintiff under Order 6 Rule 17 C.P.C. is allowed. The trial court shall proceed further with the trial expeditiously. [ DR. VINEET KOTHARI ], J. item No. ss/-