SRINAGAR: The High Court of Jammu Kashmir and Ladakh has upheld a trial court order allowing the plaintiff in a Srinagar shop eviction suit to amend the plaint to seek monthly mesne profits of Rs 50,000.
Justice M A Chowdhary dismissed a petition filed by Zahoor Ahmad Dar challenging the February 12, 2024 order of the 3rd Additional Munsiff, Srinagar, which had permitted the amendment sought by the plaintiff, Shakeel Ahmad Dar, who died during the proceedings and was represented by his legal heirs.
The dispute concerns an 8ft by 17ft shop at Munawarabad, Srinagar, which Zahoor Ahmad Dar had taken on rent under a deed executed on August 27, 2011 and registered on October 4, 2011. The suit seeks his ejectment from the premises and permanent injunction.
The plaintiff had subsequently sought to add a claim for mesne profits at the rate of Rs 50,000 per month, along with consequential amendments to the pleadings, valuation and prayer clauses.
The defendant opposed the amendment, arguing that the written statement had already been filed and that the proposed changes would introduce a new case and prejudice him.
The High Court, however, noted that the trial had not commenced when the amendment application was filed and the issues were yet to be framed. It held that the restriction under the proviso to Order VI Rule 17 of the Code of Civil Procedure, which applies to amendments sought after commencement of trial, was therefore not attracted.
The court also held that the proposed claim for mesne profits did not introduce an entirely new cause of action. It observed that the plaintiff had already referred to notices issued to the petitioner and claimed entitlement to mesne profits arising from his alleged continued occupation of the shop.
Justice Chowdhary said the question of whether the plaintiff was actually entitled to mesne profits, whether the Rs 50,000 monthly rate was justified and the period for which such profits could be claimed would have to be decided by the trial court on the basis of evidence.
The High Court further held that the defendant would have an opportunity to file an amended written statement and contest the amended pleadings, and therefore the amendment did not cause such prejudice as could not be addressed through an appropriate opportunity.
The court found no jurisdictional error, perversity or patent illegality in the trial court’s order warranting interference under its supervisory jurisdiction under Article 227 of the Constitution.
It accordingly dismissed the petition and pending applications and upheld the February 12, 2024 order. An interim direction issued on May 3, 2024 was also vacated.
The High Court clarified that its observations were confined to the amendment application and did not amount to a finding on the merits of the parties’ respective claims and defences.
The trial court has been directed to proceed with the suit expeditiously.
