Uma Devi & Ors. v. Ziauddin Ahmad & Ors.
Case at a glance
- Bench
- MUNGESHWAR SAHOO
Outcome
Allowed
Accordingly, this writ application is allowed and the
Provisions considered
Judgment
Heard the learned counsel for the parties. The plaintiff petitioners have filed this writ application under Article 227 of the Constitution of India against the order dated 25.7.2008 passed by Munsif-1st Gaya in Title Suit No. 14 of 1993 whereby by the learned court below rejected the amendment application filed by the plaintiff petitioners. It appears that the plaintiff petitioners filed the aforesaid title suit praying for mandatory decree directing respondents removing construction made on the first floor and also for permanent injunction against the respondents. The defendant respondents appeared and filed contesting written statement claiming title on the suit property. Thereafter the present plaintiff filed the application for declaration of title over the suit property. The learned court below by the impugned order rejected the said prayer on the ground that the plaintiff is now trying to change the suit for mandatory injunction to a suit for declaration of title.
The learned court below also held that the written statement has been filed by the defendant and therefore, if amendment is allowed the defendant will be prejudiced. 2 The learned counsel the petitioners submitted that the issues have not been framed and the parties are yet to adduce evidence in the present case. On the other hand the learned counsel for the respondents submitted that the learned court below has rightly refused the amendment and, therefore, it cannot be interfered with in supervisory jurisdiction. In case of Sampat Kumar vs. Ayyakannu AIR 2002 SC 3369 the Apex Court has held that if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in the new suit and cannot be permitted to be incorporated in the pending suit. From perusal of paragraph 5 of the said decision it appears that in that case also the question was as to whether a suit for permanent prohibitory injunction can be converted to a suit for declaration of title or not.
Operative part
The Apex Court answered the question in affirmative and held that by allowing amendment the basic structure of the suit is not altered by the proposed amendment. In the present case also the plaintiff by amendment is seeking to convert the suit for mandatory injunction to a suit for declaration of title. In view of the above settled proposition of law laid down by the Apex court, in my opinion, the learned court below has not exercised the jurisdiction vested in it by law and thereby occasioned failure of justice. Thus 3 the impugned order is unsustainable in the eye of law. Accordingly, this writ application is allowed and the impugned order is set aside. The amendment application filed by the plaintiff petitioners is allowed. The plaintiff petitioners incorporated amendment within the stipulated period provided in C.P.C. from the date of receipt of a copy of this order in the court below or from the date of production of a copy of this order by the petitioners in the court below. S.S. (Mungeshwar Sahoo,J.)
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Accordingly, this writ application is allowed and the
Which statutory provisions did this judgment involve?
Constitution of India — art. 227; Code of Civil Procedure, 1908.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.