HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether he case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 789 of 2006 (M/S) Mohammad Shakir Vs Civil Judge (J.D.) Ranikhet Distt. Almora and another. Approved for reporting. Not approved for reporting Date of decision 31.07.2006 Initial of Judge HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION No. 789 (MS) of 2006 Mohammad Shakir, s/o Abdul Kareem, Shop Keeper of Readymade Garments, Gandhi Chowk, Ranikhet, District-Almora. ............Petitioner. Versus 1. Civil Judge (junior Division), Ranikhet, District – Almora. 2. Mohammad Hanif, S/o Sri Mohammad Aziz, R/o Sudamapuri Ranikhet, District-Almora. .........Respondents. Dated: 31.07.2006 Hon’ble Rajesh Tandon, J. Heard Sri T.A. Khan & Smt. Farida Siddiqui, Advocate for the petitioner, Standing Counsel for the respondent no. 1 and Sri Siddartha Bisht, Advocate for the respondent no.2. 2. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 31.05.2006 passed by respondent no. 1 in Civil Suit No. 14/2004. 3. Briefly stated, according to the case of the petitioner, a Civil Suit was field by the respondent no. 2 against him being Civil Suit No. 14 of 2004 before the respondent no. 1 alleging that the respondent no. 2 was the owner and lease-holder of House No. 2 to 9 and October, 2004, respondent no. 2 had put his roof after demolishing some portion of the wall without taking consent of the petitioner and petitioner claimed Rs. 20,000/- as compensation of demolition of the linter. 4. During the pendency of the case, an amendment application has been filed by the plaintiff/respondent no.2 by praying for the following amendment:- **v- vr% izFkZuk gS fd nkos ds iSjk la[;k 2 ds vUr esa ;g bckjr tksM nh tk;s **fnukad 03-05-05 dks izfroknh us oknh dh mDr nhoky ds mij e; cuk;h x;h igyh eafty dh Nr dk fyUVj Mky fn;k gS rFkk tehu dh eafty dh Nr ds fyUVj ij igys ydMh dk tks ikVs’ku oknh dh nhoky ij yxk;k Fkk mldks fnukad 21-04-06 dks gVkdj oknh dh bl nhoky ij iwjh 18 QhV dh yEckbZ esa bZV dh iDdh nhoky ns nh gSA bl izdkj oknh dh nhoky dh iwjh pkSMkbZ dks cUn dj fn;k gS rFkk bl u;h nhoky ds nf{k.k&iwohZ fgLls esa ,d u;k njoktk cuk fn;k gSA bl izdkj vc izfroknh }kjk oknh dh nhoky ds mij nks fyUVj] rhu dkWye rFkk ,d nhoky 18 fQV yECkh o ,d njokts dks rqMok;k tkuk vko’;d gSA c& fd nkok iSjk la[;k 7 esa 'kCn **fyUVj ** ls igys vad **2** rFkk 'kCn fyUVj ds i’pkr bckjr 2 fyUVj] 3 dkSye] nhokj 18 QhV yEch rFkk njoktk **tksM fn;k tk; rFkk 'kCn ewY; ds ckn vad 1000=00 dks dkVdj bl LFkku ij vad **2000** tksM fn;k tk; 'kCn dqy ewY;kadu ds i’pkr vad **22000** dks dkVdj bl LFkku ij vad **23000** tksM fn;k tk;A blh iSjk esa vad **1907** ,ao 22-50 ds chp esa vad **22-50** tksM fn;k tk; rFkk vad **1952=00** dks dkVdj bl LFkku ij vad **1974=50** fy[k fn;k tk;A l& fd vuqrks"k ¼c½ esa 'kCn fyUVj ds igys vad **2** fy[kk fn;k tk; rFkk 'kCn **fyUVj** ,ao v{kj **dks** ds chp bckjr 3 dkye] 1 nhoky 18 fQV yEch o ,d njoktk tksM fn;k tk;A** 5. The objections have been filed by the tenant on the ground that the same shall in the knowledge of the plaintiff. The suit was filed with a prayer to the following effect”- **¼v½ izfroknh nhokj ds uqdlku dk eqvkoktk 20]000@& ¼chl gtkj½ :i;k oknh dks vnk djsA ¼c½ izfroknh] oknh dh nhokj ij j[ks 2 fyUVy 3 dkye ,d nhoky 18 QhV yEch o ,d njoktk dks fu;r frfFk vUnj rqM+ok;s] vU;Fkk ekuuh; U;k;ky; ds ek/;e ls izfroknh ds [kpZ ij rqM+ok;k tk;A ¼l½ izfroknh dks oknh dh nhokj ij Hkfo"; esa fuekZ.k djus ls ges’kk ds fy, fuf"k) dj fn;k tk;sA ¼n½ vU; vuqrks"k mijksDr izlax esa ;fn vko’;d gks] og Hkh iznku fd;k tk;A 6. The trial Court has allowed the amendment. 7. The grievance of the petitioner is that trail court has not considered the fact at the time of allowing the amendment and in the commission report, it was specifically mentioned that on the date of commission i.e. on 27.10.2004, the roof of ground and the pillar of first floor was existing and by way of application for amendment, the respondent no.2 has sought amendment in the plaint for getting a relief for the demolition of the roof of the ground floor and the pillars of the first floor. 8. In Keshwa Nand Puri Vs. State of Uttaranchal 2003 (53) ALR 278, it has been observed as under:- “it is a settled law that at the time of allowing of amendment, the court has only top look as to whether the ingredients of Order VI, Rule 17 CPC are satisfied or not. Rule 17 is very much clear. It provides that amendment can be allowed at any stage of proceedings on such terms as may be just, there is no quarrel with the proposition that the management was sought at the trial stage and that too without changing the nature of the suit. 9. In Sampath Kumar Vs. Ayyakannu and another (2002) 7 SCC 559, it has been observed as under:- “In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial court and with the High Court in refusing the prayer for amendment and also ion dismissing the plaintiff’s revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.” 10. In view of the above, the respondent no.1 is directed to decide the amendment pleadings within a period of six weeks from the date of production of certified copy of this order in accordance with law and it will be open for the parties to file the amendments. 11. Consequently, writ petition is dismissed along with all the pending applications. No order as to costs. (Rajesh Tandon, J.) 31.07.2006 Rathour