HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

Reserved On: 05/04/2021

Pronounced On: 07/042021

CM (M) 63/2021

CM (1937/2021)

Mohammad Shafi Mir and another

… Petitioner/Appellant(s)

Through: Mr. Shafqat Nazir, Advocate

V/s

Mohammad Sultan Mir

… Respondent(s)

Through:

CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

1.

In the instant petition, supervisory jurisdiction of this court invoked

under Article 227 of the Constitution of India by the petitioners for

quashment of order dated 31.12.2020 (for short impugned order)

passed by the court of Munsiff, Sogam (hereinafter referred to as

trial court), whereby an application for amendment of the plaint filed

by the plaintiff respondent herein before the trial court has been

allowed.

2.

The petition is filed on the premise that the petitioners and

respondent herein being related as brothers inherited the estate of

father after his death as his legal heirs qua their respective shares

which had accrued to them after the father during his lifetime

partitioned the said estate/property. The respondent herein is stated

to have been putting up as Khana Damad of one Ghulam Ahmad

Mir son of Abdul Aziz Mir, having married his Khana Nisheen

daughter Roshni Begum.

CM (M) 63/2021, CM (1937/2021)

Page 2 of 8

3.

It is being stated that a time-barred suit came to be filed by the

respondent herein for declaration, partition and permanent

injunction before the trial court against the petitioners herein

seeking therein a preliminary decree for partition, declaration and

injunction. It is being stated that an exparte interim order came to be

passed by the trial court on 24.7.2019 restraining the non-applicants

petitioners herein from changing the nature of the suit property or

creating any third party interest. It is being stated that upon entering

appearance before the trial court, the petitioners herein filed written

statement as also objections in opposition to the suit and application

for interim relief. It is being further stated that an application came

to be filed by the plaintiff respondent herein under Order 6 Rule 17,

Civil Procedure Code, seeking amendment of the plaint and the

court below is stated to have allowed the said application permitting

the plaintiff respondent herein to amend the suit pursuant to the

impugned order.

4.

The impugned order is challenged inter alia on the grounds that the

same is illegal and bad in law inasmuch as it has been passed without

application of judicial mind to the facts and circumstances of the

case. The trial court is stated to have unfairly sided with the plaintiff

respondent herein by allowing amendment of his plaint. The

amendment sought by the plaintiff respondent herein and allowed

by the trial court is stated to be the result of an afterthought in that

the plaintiff respondent herein had no impediment to include the

portion of the property sought to be included in the suit by way of

amendment. The amendment sought and granted by the trial court is

CM (M) 63/2021, CM (1937/2021)

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stated to be neither in the interest of law nor justice, but aimed to

prevent the petitioners herein from constructing a residential house

on the land in question. The amendment granted is stated to have

changed the whole nature of the litigation initiated by the plaintiff

respondent herein against the petitioners and a new cause of action

is stated to have been introduced which is not permissible under law.

The amendment is stated to have caused serious injustice to the

petitioners herein as the amendment sought was neither necessary

nor warranted.

5.

Heard learned counsel for the petitioner and considered the matter.

6.

Before adverting to the controversy involved in the petition, it would

be appropriate and advantageous to refer to the nature, scope and

object of Order 6 Rule 17 of CPC which provides that courts may