RAJASTHAN BENCH AT JAIPUR SB CIVIL WRIT PETITION NO.16161/2011. FAIYAZ KHAN – & Ors. v. DAUDAYAL – & Ors.

3RD AUGUST, 2012. PRESENT HON'BLE MS. JUSTICE BELA M. TRIVEDI Mr. Anil Mehta for the petitioner. Mr. J.P. Goyal, Sr. Advocate with Mr. Abhi Goyal for the respondent No.7. JUDGMENT BY THE COURT :

The present petition is directed against the order dated 20.10.11. passed by the Addl. District & Sessions Judge, Dholpur (hereinafter referred to

as 'the trial court') in Civil Suit No. 3/05, whereby the trial court has rejected the application of the petitioner-plaintiff seeking amendment in the plaint under Order VI Rule 17 of CPC.

The petitioner-plaintiff has filed a suit before the trial court seeking specific performance of the agreement dated 23.6.76 allegedly executed by the SBCWP NO. 16161/11. Faiyaz Ahmed Vs. Daudayal & Ors. 2 father of the respondent Nos. 1 to 6, late Shri Shivcharan Lal in favour of the father of the petitioner late Shri Noor Ahmed. The said suit was resisted by the respondents-defendants by filing the written statement challenging the execution of the said agreement. The respondent No. 7 to 11 have also claimed to have purchased the land in question from the respondent Nos. 1 to

On the basis of the pleadings of the parties, the trial court had also framed the issues. The petitioner- plaintiff thereafter submitted an application seeking amendment in the plaint for incorporating the plea of adverse possession in respect of the suit property under Order VI Rule 17 of CPC, which has been rejected by the trial court vide the impugned order.

It has been submitted by the learned counsel Mr. Anil Mehta for the petitioner that the proposed amendment was necessary in view of the defence taken by the respondents in their written statement. He further submitted that in the proposed amendment the SBCWP NO. 16161/11. Faiyaz Ahmed Vs. Daudayal & Ors. 3 petitioner has prayed for the alternative relief of adverse possession as the petitioner was in uninterrupted possession of the suit property since 1976 and thus had become an owner by adverse possession. According to him the proposed amendment would not change the nature of the suit and was necessary for deciding the real issues between the parties.

However, the learned senior counsel Mr. J.P. Goyal, for the respondent No. 7 appearing on caveat has supported the impugned order passed by the trial court and further submitted that the proposed amendment would change the nature of the suit and prejudice the defence of the defendants and cannot be permitted to be raised at the stage when the court has already framed the issues.

Having regard to the submissions made by the learned counsels for the parties and to the impugned order passed by the trial court, it transpires that the petitioner has sought amendment in the plaint for incorporating the paragraphs SBCWP NO. 16161/11. Faiyaz Ahmed Vs. Daudayal & Ors. 4 as contained in his application, wherein he has claimed possession on the ground that he had become owner by adverse possession, whereas his main relief in the suit is for specific performance of the agreement in question. Thus the suit for specific performance of contract is sought to be converted into the suit for declaration that the petitioner had become owner by adverse possession. Under the circumstances the proposed amendment, if permitted, would certainly change the very basic nature of the suit and also cause prejudice to the defence taken by the defendants in their written statement. It is needless to say that as per the settled legal position, the petitioner cannot be permitted to take alternative pleas and has to come out with a definite plea as regards the possession and ownership in respect of the suit property. In the instant case, it clearly transpires that the petitioner had submitted an application seeking amendment in the plaint, on the defendants having SBCWP NO. 16161/11. Faiyaz Ahmed Vs. Daudayal & Ors. 5 challenged the genuineness of the agreement in question. The trial court has rightly considered the legal and factual position in the case and rejected the application seeking amendment under Order VI Rule 17 of CPC, which order being just and proper, this court exercising limited jurisdiction under Article 227 of the Constitution of India, is not inclined to interfere with the same. The petition being devoid of merits deserves to be dismissed and is accordingly dismissed. (BELA M. TRIVEDI) J. MRG. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. M.R. Gidwani PS-cum-JW