Facts of the Case
The suit was mainly for declaration and injunction for a ‘path’. The matter was brought up by the Petitioner that the said ‘path’ was not a public way and thus the Respondent should not interfere with the same. The plaintiff M. P. Putamma sought to introduce the ground of “easement of necessity” in terms of Section 13 of the Easements Act, 1882 in her pre-trial amendment. The Respondent vehemently opposed and resisted this.
Arguments Before the Court
The counsel for the Petitioners submitted that the impugned order of the kind was treated as a discretionary one and therefore the Writ Court should not readily interfere with. The same was propounded in Sadhana Lodh vs National Insurance Company & Another, (2003) 3 SCC 524 in the absence of any culpable error being demonstrated.
The counsel for Respondents submitted that if the amendment was sanctioned, it should have retrospective effect or it needs to be examined by the learned Trial Judge while hearing the suit.
The Court observed that any amendment would inevitably cause some change and it would cause some prejudice to the other side. However, the Court must take into account the enormity of change and the consequent amount of prejudice that the other side would be put to if the Court allows for a pre-trial amendment.
The Court further noted that Sec 13 of the Act which enacts the easement of necessity presupposes dominant heritage of one and the servient heritage of another. Simply put, there was no contradiction even if it is assumed that the path in question is of public use, the essence of the section being two separate owners and nothing more.
The Court allowed the petition. The Court accorded leave to amend the plaint for which the Petitioner must pay a cost of Rs. 5,000/- to the Respondent within three weeks.
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