TARA MANI vs RADHEY KRISHAN

100

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU





CM(M) No. 242/2026
CM No. 7739/2026
CM No. 7740/2026

Tara Mani
...Petitioner /Appellant(s)
Through: - Mr. Mr. Sandeep Bhat, Advocate
vs.
Radhey Krishan ...Respondent(s)

Through: -

CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

JUDGMENT
31.10.2026


1. The petitioner, through the medium of the present petition, has
challenged order dated 14.08.2026 passed by the learned Sub Judge
(Special Mobile Magistrate), Udhampur (hereinafter referred to as the
“trial Court”), whereby the application filed by the respondent/plaintiff
seeking amendment of the plaint has been allowed.
2. It appears that the respondent/plaintiff had filed a suit against the
petitioner/defendant before the trial Court, seeking a decree of
permanent prohibitory injunction restraining the defendant from
interfering with his land measuring 04 kanals and 04 marlas, comprised
in Khasra Nos. 1205 and 1204, situated at Village Jib, Tehsil and District
Udhampur. In the plaint, the plaintiff has claimed that he is one of the

co-owners and co-sharers of the suit land and that, by way of a private
arrangement arrived at with the consent of all the other co-owners, the
land has been adjusted, separated and partitioned for the purposes of its
use, enjoyment and cultivation. According to the plaintiff, he has
constructed a residential house on the portion of the suit land which has
fallen to his exclusive share.
3. It has been pleaded that the defendant purchased a portion of the land
adjacent to the suit land from one of the co-owners and co-sharers of the
plaintiff and that he intends to annex a portion of the suit land adjacent to
the land comprised in Khasra Nos. 1206 and 1207. It has further been
pleaded that the land belonging to the defendant is situated on the
northern side of the suit land. According to the plaintiff, the defendant
fixed certain points/marks indicating the alignment of the boundary wall
he intended to raise on his land, and the said marks cover a portion of the
suit land as well. When the defendant was asked to refrain from
interfering with the suit land, he threatened to raise the boundary wall
according to his own choice and started digging its foundation.
4. The defendant filed his written statement, wherein he claimed that he
had purchased land measuring 02 kanals and 18 marlas comprised in
Khasra No. 1206 and land measuring 03 kanals comprised in Khasra No.
1207 min and he has been in lawful ownership and possession thereof
for the last 50 years. It has been further submitted that the defendant has
already covered the land which is in his exclusive and lawful possession,
he has constructed a residential house thereon and now he intends to
construct a boundary wall over his land, but the plaintiff has raised a
baseless claim. It has also been submitted that the land owned and
CM(M) No. 242/2026


Page
2
of
7

possessed by the defendant has been purchased by him from one of the
co-sharers of the plaintiff and that he has no intention of encroaching
upon any portion of the land which has fallen to the plaintiff's share.

5. It appears that the defendant moved an application before the trial Court
seeking appointment of a Local Commissioner for conducting spot
inspection of the disputed site. The application was allowed, and the
Commissioner, viz the Tehsildar, Udhampur, conducted the spot
inspection through the revenue officials and submitted his report. As per
the said report, encroachment of 16 marlas of land out of Khasra No.
1204 and 01 kanal and 04 marlas of land out of Khasra No. 1205 was
found.
6. Upon receipt of the Commissioner's report, the respondent/plaintiff
moved an application seeking amendment of the plaint so as to claim
restoration of possession of 16 marlas out of the total land measuring 01
kanal and 11 marlas comprised in Khasra No. 1204 and 01 kanal and 04
marlas out of the total land measuring 02 kanals and 13 marlas
comprised in Khasra No. 1205. The said application was resisted by the
petitioner/defendant by filing objections thereto. However, the learned
trial Court, vide the impugned order dated 14.08.2026, allowed the
application and permitted the plaintiff to amend the plaint so as to
incorporate the relief of restoration of possession in respect of the
aforesaid portion of the suit land.
7. The petitioner has challenged the impugned order on the ground that the
learned trial Court has exceeded its jurisdiction, as the proposed
amendment alters the nature and character of the suit. It has been
contended that permitting the plaintiff to convert a suit based on asserted
CM(M) No. 242/2026


Page
3
of
7

possession into one seeking recovery of possession would substitute an
entirely different cause of action and, as such, the amendment is
impermissible in law. It has further been contended that the Local
Commissioner appointed in the case did not demarcate the disputed
portion of the suit land and that the Commissioner's report cannot allow
a fresh cause of action in favour of the plaintiff. It has also been
contended that the alleged encroachment by the defendant upon the suit
land does not constitute a subsequent development and, therefore, the
learned trial Court has erred in allowing the application for amendment
of the plaint.
8. I have heard learned counsel for the petitioner and perused record of the
case.
9. Order VI Rule 17 of the Code of Civil Procedure (CPC) governs the law
relating to amendment of pleadings. As per this provision, the Court has
the discretion to permit either party to alter or amend its pleadings on
such terms as may be just. It further provides that all such amendments
as may be necessary for determining the real questions in controversy
between the parties may to be allowed. The proviso to Order VI Rule 17
CPC, however, stipulates that no application for amendment shall be
allowed after the commencement of trial unless the Court comes to the
conclusion that, despite the exercise of due diligence, the party could not
have raised the matter before the commencement of trial. Thus, before
the commencement of trial, the Court has discretion to allow amendment
of pleadings where such amendment is necessary for determining the
real controversy between the parties. However, where an amendment is
sought after the commencement of trial, the party seeking such
CM(M) No. 242/2026


Page
4
of
7

amendment is required to satisfy the Court that, despite exercising due
diligence, it could not have sought the amendment before the
commencement of trial. The primary object of allowing amendment of
pleadings is to determine the real questions in controversy between the
parties and to avoid multiplicity of judicial proceedings.
10. It is a settled law that, while considering an application for amendment
of the plaint, the Courts are required to adopt a liberal approach, unless
the proposed amendment causes irreparable injustice or prejudice to the
opposite party or when it is sought with the intention of unnecessarily
delaying the proceedings, or the proposed amendment seeks to withdraw
an admission made in the pleadings. An amendment can also be refused
if a party seeks to introduce a new cause of action which is already
barred by limitation or fundamentally alters the basic structure or
character of the suit.
11. Adverting to the facts of the present case, the plaintiff had initially
instituted a suit for permanent prohibitory injunction against the
defendant, claiming that the suit land was in his possession and that the
defendant was attempting to interfere with the same. During the
pendency of the suit, and before the commencement of trial, the
defendant moved an application seeking appointment of a Local
Commissioner, which was allowed by the trial Court. Accordingly, the
Tehsildar was appointed as the Local Commissioner, who visited the
spot and submitted his report. As per the report submitted by the
Tehsildar, certain portions of the suit land were found to have been
encroached upon by the defendant. This prompted the plaintiff to move
an application seeking amendment of the plaint so as to incorporate the
CM(M) No. 242/2026


Page
5
of
7

relief of recovery of possession in respect of the portions of the suit land
which, according to the Commissioner's report, have been encroached
upon by the defendant. By way of the proposed amendment, the plaintiff
intends to seek recovery of possession only to the extent of the alleged
encroached portions of the suit land.
12. The question that arises for consideration is whether the proposed
amendment changes the nature and character of the suit. This issue has
been dealt with by the Supreme Court in the case of Sampath Kumar v.
Ayyakannu , (2002) 7 SCC 559. In the said case, the Supreme Court held
that merely changing the relief from injunction to possession, where said
reliefs arise out of the same property dispute, does not fundamentally
alter the basic structure or complexion of the suit. The Supreme Court
further observed that forcing the plaintiff to withdraw the original suit
and institute a fresh suit for possession would result in unnecessary delay
and wastage of judicial time.
13. In view of the aforesaid legal position, merely because the plaintiff has
sought the relief of recovery of possession in respect of the alleged
encroached portions of the suit land, it cannot be said that the proposed
amendment alters the basic structure or character of the suit, particularly
when the relief sought by way of amendment pertains to the same
property, which is the subject matter of the original suit.
14. The learned trial Court has correctly appreciated the factual and legal
aspects of the matter while considering the application filed by the
respondent/plaintiff seeking permission to amend the plaint. The
discretion exercised by the learned trial Court at the pre-trial stage, in the
facts and circumstances of the case, does not warrant interference by this
CM(M) No. 242/2026


Page
6
of
7

Court in exercise of its supervisory jurisdiction under Article 227 of the
Constitution, particularly when there is no perversity or illegality in the
impugned order.

15. For the foregoing reasons, I find no merit in the present petition. The
same is, accordingly, dismissed.
(SANJAY DHAR)
JUDGE

Jammu:
31.11.2026
Karam Chand

Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
CM(M) No. 242/2026


Page
7
of
7