// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.3420/2004 Suresh Kumar S/o Rameshwar and Another Versus Mamraj S/o Shri Bhuramal Mahajan and Others Date of Order ::: 01.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Mahesh Gupta, Counsel for the petitioners None present for the respondents #### //Reportable// By the Court:- Heard learned counsel for the petitioner. The plaintiff-petitioners filed a suit for permanent injunction in respect of the disputed property in the trial court wherein it was pleaded that the disputed piece of land, where their stall was installed, was taken after payment of fee from Gram Panchayat at the rate of Rs.5/- per month, vide resolution No.9 dated 25th September, 1988, therefore, the disputed land belongs to Gram Panchayat and the defendants have nothing to do with the said land but they want to dispossess the petitioners without any authority of law, therefore, the defendants should be restrained by way of permanent injunction not to dispossess the petitioners from the disputed piece of land. During the pendency of the suit the plaintiff-petitioners filed an application under Order 6 Rule 17 of the CPC for amendment in the plaint wherein it was contended that after filing the suit the plaintiffs have got a 'patta' dated 19th December, 1989 // 2 // from Gram Panchayat, Patan, therefore, they have become the owner of the disputed piece of land where their shop is situated, therefore, the plaintiffs may be allowed to amend their plaint pleading therein about issuance of 'patta' in their favour by adding sub-para 3(ka) after Para 3 of the plaint. It was also contended in the application that the matter is fixed only for plaintiffs' evidence, therefore, the amendment be allowed at this stage. The defendants filed their reply to the application and contested the application contending that the disputed piece of land is a public land and, during the pendency of the suit, the plaintiffs had no right to take 'patta' from Gram Panchayat. The provisions of Section 52 of the Transfer of Property Act are applicable. It was also contended that the plaintiffs filed the present suit contending therein that they are tenants and now they want to become owner of the disputed piece of land. The plea of delay in filing the application was also taken. The trial court, vide its order dated 27th July, 1999, rejected the application for amendment in the plaint filed by the petitioners. The said order is under challenge in this writ petition preferred by plaintiffs. The learned counsel for the plaintiffs contended that the trial court committed an illegality in rejecting the application for amendment in the plaint filed by the plaintiffs whereas, in the facts and circumstances of the case, the amendment, sought for in the plaint, was necessary for proper adjudication of the matter. He contended that the plea of the plaintiffs in the plaint was that the land, in dispute, was given to them by Gram Panchayat on // 3 // payment of fee whereas, now, during the pendency of the suit, they applied for allotment of the land itself and Gram Panchayat was pleased to issue a 'patta' of the disputed land to the plaintiffs, therefore, they have now become owner of the same. He further contended that the defendants did not plead in the written- statement that they are the owners of the land, in dispute, or they are the landlords of the plaintiffs. It was further contended that they pleaded that defendants are none else and their interest is not there in the disputed land but they unnecessarily want to harass the petitioners by dispossessing them from the disputed land. He further contended that the trial court committed an illegality in rejecting the application only on the ground of delay whereas the delay itself cannot be a ground for rejection of the application for amendment in the pleading if the amendment sought for is necessary for proper adjudication of the case. Therefore, the order passed by the trial court is liable to be set- aside and amendment sought for, may be allowed in the interest of justice. A notice to show-cause was given to the respondents by this Court vide order dated 31st May, 2004 and the interim stay order maintaining the status-quo was also passed. The notices of respondents No.1 to 6 were served through ordinary process whereas the notice of respondent No.7 Virat was served through publication in daily newspaper, but no one is present on behalf of the respondents in spite of service of notices, to oppose the present writ petition. // 4 // I have considered the submissions of learned counsel for the petitioners in the light of reasons assigned by the trial court for rejecting their application for amendment in the plaint. A copy of plaint and written-statement was also referred during the course of arguments. The plaintiffs filed a suit for permanent injunction with a prayer that the defendants have no right whatsoever to dispossess them from the disputed piece of land as the said land was given to them by Gram Panchayat on payment of fee. It appears that during the pendency of the suit the petitioners approached the Gram Panchayat and a 'patta' has been issued to them as contended by them in their application and on that basis they moved an application for amendment in the plaint. The trial court has rejected the application on the ground of delay in filing the application as well as on the ground that nature of the suit itself will be changed in case the amendment is allowed. I find that both the reasons assigned by the trial court are absolutely illegal and baseless, and on that basis the application could not have been dismissed. The nature of the suit is not changed by way of this amendment sought in the plaint, rather this amendment is necessary for proper adjudication of the suit. It is not a case where the plaintiffs pleaded that the plot, in dispute, was taken by them from the defendants but there was specific pleading on behalf of the plaintiffs that the land in dispute belongs to Gram Panchayat and it was earlier taken by them on payment of fee; now 'patta' has been issued in respect of the same land by Gram Panchayat in their favour, therefore, in these circumstances, I find // 5 // that the amendment sought in the plaint was necessary for proper adjudication of the case and the trial court committed an illegality in rejecting the application. I further find that the delay in filing the application is relevant and material but the same cannot be a sole ground for rejecting the application where the amendment sought for is found to be necessary for proper adjudication of the case. In view of the above discussion, the writ petition is allowed. The impugned order dated 27th July, 1999 passed by the trial court is set-aside. The application for amendment in the plaint filed by the plaintiff-petitioners, is allowed. There shall be no order as to costs. (Narendra Kumar Jain) J. //Jaiman// // 6 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Application No.2939/2004 In S.B. Civil Writ Petition No.3420/2004 Suresh Kumar S/o Rameshwar and Another Versus Mamraj S/o Shri Bhuramal Mahajan and Others Date of Order ::: 01.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Mahesh Gupta, Counsel for the petitioners None present for the respondents #### By the Court:- In view of the order passed in the writ petition itself, the stay application, filed therewith, also stands disposed of. (Narendra Kumar Jain) J. //Jaiman//