Although the defendant no.1 asserted in the written statement that he remained in possession, and also challenged the maintainability of the suit in the absence of a prayer for possession, the fact of his possession was disputed by the plaintiff. However, during the course of hearing of the applications under Order XXXIX Rules 1 and 2, and Order XXXIX Rule 2A, this Court returned a finding that the defendant no. 1 was in possession. The order of the learned Single Judge dated 22.07.2013 was carried in appeal, which was withdrawn on 08.08.2014. The plaintiff’s case, that these proceedings have necessitated an amendment in the plaint, is not unreasonable. The Trial Court has erroneously held that the relevant findings contained in the order dated 22.07.2013 were based upon the report of the Local Commissioner dated 13.08.2008. In fact, the Local Commissioner’s report was inconclusive as to possession, as is reflected from paragraph 16 thereof. The order specifically notes as much in paragraph 14 (extracted above), but upon a consideration of the facts reported to the Court, the Court has come to the conclusion that defendant no. 1 was in possession. These observations have been recorded in the context of deciding the plaintiff’s application under Order XXXIX Rule 2A, wherein it was alleged that the defendant no.1 had violated the status quo order granted by the Court and entered into possession after 13.08.2008. The plaintiff’s failure to move earlier to incorporate this additional prayer does not display any lack of diligence in the circumstances, keeping in mind the tests laid down in Chander Kanta Bansal (supra) and J. Samuel (supra).
