An amendment changing the nature of the suit and causing prejudice to the other party should not be allowed.

This writ petition has been filed for quashing the order dated 16-1-1999 passed by 1st Additional District Judge, Sonebhadra, Annexure-5 to the writ petition by which the amendment application fifed on behalf of plaintiff- respondents No. 3 to 5 has been allowed.

2. The facts arising out of the present writ petition is that respondent No. 2 filed a suit for permanent injunction impleading therein the petitioner-respondent No. 3 Jawahar Singh husband of Smt. Gulab Patti Devi, respondent No. 4 and respondent No. 5 alleging therein that the petitioner is residing in the house shown by letters Ka, Kha, Ga, Gha in the sketch map attached to the plaint. It has been stated that towards the south of the letters Kha, Ga, a Gali exists which has been shown by letters A, B. The plaintiff wants to raise some construction in the aforesaid portion but the defendants are causing obstructions, hence the suit. The written statement was filed on behalf of the defendants alleging therein that the plaintiff is intending to get staircase constructed in the Gali shown in the letters, which is a land of public utility. It is a public path and Nali containing dirty water flowing from there. The aforesaid public land along with Nali exists for the last 32-35 years. It is the only way by which the dirty water of the locality flows. In case any construction is permitted, it will cause nuisance. Various issues were framed and the parties led their evidence and the trial Court after considering the evidence on record, was pleased to

dismiss the suit vide its judgment and decree dated 19-8-1996. Respondent No. 2 aggrieved by the aforesaid judgment and decree filed an appeal. Before the appellate Court an application for amendment for changing the total nature and relief of the plaint claimed before the trial Court was filed. In spite of the objection by the petitioner to this effect that the present application for amendment is not maintainable as the plaintiff-respondent has already admitted and claimed the easementary right upon the lane in dispute and now by way of amendment he wants to withdraw his admission, therefore, this will amount to total changing the nature of the suit but the appellate authority without considering the aforesaid fact has allowed the revision vide its judgment and order dated 16-8-1999. Aggrieved by the aforesaid order the petitioner has filed the present writ petition.

3. It has been submitted on behalf of the petitioner that it is not in dispute that the amendment can be allowed at any stage but a person cannot resile from the admission, which has already been made. The Counsel for the petitioner has brought it to the notice of the Court regarding the plaint which was filed before the trial Court and has submitted that the relief sought in the plaint was for easementary right only to the effect that the defendant-respondents may be restrained from interfering in the peaceful use of the said Gali. It was never pleaded in the plaint that he is the owner of the said land in dispute. By the amendment, which he wants to bring before the appellate Court, he is claiming that he is the owner in possession of the land, which has been shown as A, B. The said amendment changes the total nature of the suit and the same is not permissible and the appellate authority has clearly erred in law in allowing the said amendment application vide its order dated 16-8-1999.

4. It has further been submitted on behalf of the petitioner that the amendment is an afterthought as the trial Court has already non-suited the plaintiff-respondent and when the plaintiff came to know that on the basis of the pleadings submitted in the plaint, he will not be able to succeed as such he has totally changed the nature of the suit by way of the present application for amendment. Reliance has been placed on the case reported in AIR 1978 SC 798, Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali & Co. , and paragraph 6 of