Amendment of Plaint – Merits of the amendment sought to be incorporated are not to be adjudged at the stage of allowing the prayer of amendment.

Mr. Raj Mohan Singh, J.:- Petitioner has challenged the order dated 03.11.2014 passed by Civil Judge (Sr. Divn.) Jind, in a suit for declaration with consequential relief of permanent injunction, titled “Smt. Phul Pati vs. Bhim Singh and others” vide which application for amendment of the plaint was dismissed.

2. Brief facts are that the plaintiff filed a suit for declaration to the effect that judgment and decree dated 01.10.1980 passed in a civil suit was illegal, null & void and not binding upon the rights of the plaintiff. Consequential relief of permanent injunction was also sought to restrain the defendants from alienating or creating any encumbrance over the suit property.

3. The suit was contested by the defendants by filing the written statement. Thereafter replication was filed by the plaintiff.

4. After completion of the pleadings, case was fixed for evidence of the plaintiff. No plaintiff witness was examined on 12.03.2014. Application under Order 6 Rule 17 CPC was filed by the plaintiff on the ground that in the written statement, plea was taken by the defendants that suit for mere declaration was not maintainable as the defendants were owners in possession over the suit land. Plaintiff sought to amend the headnote of the plaint in the following manner:-

“(a) That in the head note of the plaint in 9th line after the words ‘mortgaging or encumbering’ the following sentence is to be added:

“land measuring 28 Kanals 0 Marla comprised in Khewat No.593, Khatoni No.901, Rect. No.25 Killa No.6(8-0), 7(8-0), 14(8-0), 15(4-0) situated in Vill. Alewa, vide Jamabandi for the year 1974-75 and now comprised in Khewat No.830 Khatoni No.1183 of revenue estate of Vill. Alewa vide Jamabandi for the year 2009-2010”

(b) That in the head note of the plaint at the end the following sentence is to be added:-

“and consequently for possession/ joint possession of aforesaid land alongwith mesne profits @ Rs.30,000/- per acre per annum, on account of unauthorised use and occupation, from the date of filing of the suit till delivery of possession thereof to the plaintiff”

(c) That in para No.9 of the plaint in second line after the words ‘judgment and decree dated 01.10.1980’ the sentence “and consequent mutation No.6318” is to be added.

(d) That at the end of para No.9(iii) of the plaint the following sub para is to be added:-

“iv) That the plaintiff never suffered the impugned judgment and decree by filing any written statement, by appearing in court or by suffering any statement in favour of the plaintiff (now defendants) in the court. The plaintiff was absolute owner and in possession of the land in dispute as co-sharer in the Khewat. There was no preexisting right of the present defendants in land in dispute as they were not members of her family nor they had any right to inherit her estate and so no question of making any family settlement in the year 1980 and relinquishing her right in their favour arises nor any alleged family settlement ever took place nor got incorporated in the revenue records. The plaintiff never received any summons of the suit alongwith copy of plaint from the court nor she had engaged any advocate for preparing and filing the written statement thereby admitting their claim in toto. The plaintiff never delivered possession of the suit land to the defendants nor she can deliver the same. The plaintiffs (present defendants) never became owner in possession of the land in dispute and of the share of present plaintiff on the basis of impugned judgment and decree dated 01.10.1980 and its consequent mutation No.6318 and this mutation was got entered and attested by the present defendants in absence of the present plaintiff. Thus, the impugned judgment and decree and consequent mutation are not binding on the rights of the present plaintiff and the same are liable to be set aside being illegal, bad in law, result of fraud and misrepresentation.”

(e) That at the end of para No.14 of the plaint the following s