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DEEPAK GUPTA, J. –

The petitioner-plainti? has approached this Court under Article 227 of the Constitution of India assailing the order dated 19.08.2015 (Annexure P-1), passed by the learned Civil Judge (Junior Division), Jalandhar, whereby her application under Order VI Rule 17 CPC seeking amendment of the plaint has been dismissed.

2. The petitioner is the plainti? in Civil Suit No.55151 of 2013, titled Mohinder Kaur v. Mohinder Lal and others, pending before the learned trial Court. The suit was instituted seeking a decree of permanent injunction restraining the defendants from making any further encroachment upon the common passage. The case set up by the plainti? is that the passage in question is more than 12 feet in width and that defendant Nos.1 to 3 had already encroached upon approximately 1½ feet thereof. It was further alleged that the defendants were attempting to make further encroachment upon the remaining portion of the common passage.

3. During the pendency of the suit, an application under Order XXXIX Rules 1 and 2 CPC was moved by the plainti?. The order passed thereon led to the ?ling of Civil Revision No.7215 of 2014 before this Court. During the proceedings in the said revision petition, a statement was made on behalf of respondent No.1 that he would not raise any construction over the 10½ feet portion referred to in the prayer made by the plainti?. It was also brought to the notice of this Court that the application under Order XXXIX Rules 1 and 2 CPC had already been withdrawn.

4. Later on, the plainti? moved the application under Order VI Rule 17 CPC. By way of the proposed amendment, the plainti? sought incorporation of a consequential relief to the e?ect that in the event defendant No.1 succeeds in raising construction by amalgamating any portion of the common passage with his own land, the plainti? should also be entitled to seek removal of such construction.

5. The learned trial Court declined the amendment by observing that the plainti? herself had asserted that the main road was only 10½ feet in width. The said order has been assailed before this Court.

6. Learned counsel for the petitioner contends that the ?ndings recorded by the learned trial Court proceeds on an incorrect appreciation of the pleadings. According to learned counsel, the speci?c case pleaded in the plaint is that the common passage is more than 12 feet in width and that the defendants had already encroached upon approximately 1½ feet thereof. It is further submitted that the proposed amendment does not introduce any new or inconsistent cause of action but merely seeks incorporation of a consequential relief ?owing from the existing pleadings. It is also pointed out that, although the issues had been framed, no evidence had been led by either side when the application was moved and, therefore, the amendment could not cause any prejudice which could not be adequately addressed by granting an opportunity to the defendants to ?le a consequential written statement and contest the amended pleadings.

7. Learned counsel appearing for respondent Nos.1 to 3 has opposed the petition and supported the order passed by the learned trial Court.

8. I have considered the submissions advanced by learned counsel for the parties and perused the pleadings as well as the impugned order dated 19.02.2015 (Annexure P-1).

9. The power to permit amendment of pleadings under Order VI Rule 17 CPC is intended to enable the Court to determine the real controversy between the parties. Ordinarily, an amendment which is necessary for adjudication of the actual dispute should be allowed, particularly where it does not introduce a wholly new and inconsistent case or alter the fundamental nature of the proceedings. At the same time, the proviso to Order VI Rule 17 CPC requires the Court, after commencement of trial, to examine whether despite due diligence the party could not have raised the matter before commencement of trial.

10. In the present case, although the issues had already been framed, it is not in dispute that the evidence of the parties had not commenced when the application for amendment was ?led. More importantly, the amendment sought is directly connected with the subject matter of the original suit. The original suit is founded upon the allegation that the defendants have encroached, and are attempting to make further encroachment, upon the common passage. The proposed relief for removal of any construction raised by the defendants over the passage is therefore only an appropriate and consequential relief arising from the very controversy already pleaded in the plaint.

11. The proposed amendment does not seek to introduce a new cause of action unrelated to the original suit. Nor does it substitute the case originally set up by the plainti? with a completely di?erent case. The essential dispute between the parties remains the same, namely, the alleged encroachment upon the common passage and the right of the defendants to make any construction thereon. The addition of a prayer for mandatory injunction, in the circumstances pleaded, would enable the trial Court to e?ectively and completely adjudicate upon the dispute between the parties and avoid multiplicity of proceedings.

12. The reason assigned by the learned trial Court for declining the amendment also does not appear to be sustainable. The original pleadings, as noticed above, contain a speci?c assertion that the passage is more than 12 feet in width and that approximately 1½ feet thereof has already been encroached upon by the defendants. The reference to 10½ feet in the context of the proceedings before this Court cannot, by itself, be construed as an abandonment or withdrawal of the speci?c plea contained in the plaint regarding the width of the passage. The proposed amendment has, therefore, to be examined in the context of the pleadings as a whole and not on the basis of an isolated reference to the measurement of the passage.

13. It is also relevant that the proposed amendment was sought at a stage when the evidence had not commenced. The defendants will have full opportunity to meet the amended pleadings, including by ?ling an amended or additional written statement, if so advised, and by leading appropriate evidence. Any prejudice caused on account of the delay in seeking the amendment can adequately be compensated by costs.

14. In these circumstances, the proposed amendment is necessary for determining the real controversy between the parties. Refusal of the amendment would, on the other hand, compel the plainti? to institute separate proceedings for removal of any construction which may ultimately be found to have been raised upon the common passage, thereby unnecessarily multiplying litigation.

15. Consequently, the present petition is allowed. The impugned order dated 19.08.2015 (Annexure P-1) is set aside. The application ?led by the petitioner under Order VI Rule 17 CPC is allowed, subject to payment of costs of Rs.10,000/- to respondent Nos.1 to 3.

16. The petitioner shall carry out the necessary amendment in the plaint upon payment of the aforesaid costs through demand draft in favour of respondent Nos.1 to 3. The respondents shall thereafter be entitled to ?le their consequential pleadings, if any, and shall have full opportunity to contest the amended plaint in accordance with law.

17. It is clari?ed that nothing contained in this order shall be construed as an expression of opinion on the merits of the rival claims, including the actual width of the passage, the alleged encroachment or the entitlement of the petitioner to the relief ultimately claimed. The learned trial Court shall decide the suit on the basis of the evidence led by the parties and in accordance with law.

18. The petition stands disposed of in the above terms.

Petition allowed.

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