CM(M) No.169/2024 Page No. 1 of 8 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 06.06.2025 Pronounced on:04.07.2025 CM(M) No.169/2024 ZAMROODA BANO …PETITIONER(S) Through: - Mr. Wajid Haseeb, Advocate. Vs. FAROOQ AHMAD NAJAR & OTHRS …RESPONDENT(S) Through: - None. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1) The petitioner has challenged order dated 26.04.2024 passed by 2nd Additional Munsiff, Srinagar, whereby her application seeking rejection of amended plaint filed by respondents No.1 to 4 has been dismissed. 2) It appears that the respondents No.1 to 4 (hereinafter referred to as “the plaintiffs”) had filed a suit for partition, declaration, possession and permanent injunction against the petitioner and proforma respondents (hereinafter referred to as “the defendants”) before the Court of 2nd Additional Munsiff, Srinagar (hereinafter referred to as “the trial court”). 3) In the suit, the plaintiffs had pleaded that they happen to be the brother and sisters of Late Abdul Rashid Najar CM(M) No.169/2024 Page No. 2 of 8 whereas defendant No.1 happens to be his wife. According to the plaintiffs, Abdul Rashid Najar expired on 15.11.2021 leaving behind plaintiffs and defendants as his only legal heirs. It was pleaded that the deceased Abdul Rashid Najar left behind a shop in Janglat Gali at Court Road, Lal Chowk, Srinagar, and half share in a four storeyed residential house along with land underneath and appurtenant thereto situated at Shah Kadal/Watal Kadal, Safa Kadal, Srinagar, falling under Khasra No.1243. It was pleaded that the aforesaid property has devolved upon the legal heirs of deceased Abdul Rashid Najar and, as such, the plaintiffs and the defendants are entitled to shares in the said property in accordance with Muslim Personal Law relating to inheritance. On the basis of these assertions, the plaintiffs sought a decree of partition in respect of the aforesaid property with a mandatory injunction directing defendant No.1 (petitioner herein) to deliver possession of due share of the suit property in their favour with a permanent prohibitory injunction restraining the defendants from alienating or disposing of the suit property. 4) Defendant No.1 filed her written statement in the suit in which she claimed that she is running the business from the shop in question and she has been doing it even during the lifetime of her deceased husband, as he was ailing. It has CM(M) No.169/2024 Page No. 3 of 8 been pleaded that deceased Abdul Rashid Najar has invested in the business which she is running from the shop in question and now the plaintiffs are trying to grab the said property. According to defendant No.1, the suit shop was allotted to her deceased husband and it is the only source of income to her. The same according to defendant No.1, cannot be the subject matter of partition. 5) During the pendency of the suit, plaintiffs filed an application seeking amendment of the plaint. In para (6) of the said application, the details about the proposed amendments were incorporated by the plaintiff. It would be profitable to reproduce the said details: a) That the father of the plaintiffs and the father-in-law of the defendant No 1 Abdul Samad Najar had two wives and accordingly issues from both of them. From his first wife he had four issues namely Zooni, Azizi, Abdul Salam and Abdul Rasheed From his second wife he had four issues again namely Farooq Ahmad Chasfeeda, Rubeena and Asmat Jan. Zooni and Azizi above named had relinquished their right to inherit through a deed duly registered. b) After the death of Abdul Rasheed on 15-11-21 issueless and intestate his properties devolved upon the parties to this suit automatically under the Muslim law. The parties became co-sharers and are presumed in law to be in possession of every inch of the immovable properties and every penny of the cash reserves etc. A formal partition is the only issue amongst them. c) That in respect of the Shop No 4 at Janglat Gali, Lal Chowk Srinagar the parties by mutual consent and at the persuasion of the relatives and respectable persons in the area decided to hand over the keys of the same to one Mr Mohammad Sultan who is an office bearer and a member of the Bazar Committee at Janglat Gali. However, despite, the arrangement the defendants broke open the locks with the aid of the brothers of the CM(M) No.169/2024 Page No. 4 of 8 defendant No. 1 and took away the goods inside during the pendency of this suit in violation of the court order directing the parties to maintain Status Quo in respect of the suit properties. At present some stranger is sitting in the shop in total violation of the orders of this Hon'ble Court. d) That the deceased Abdul Rasheed was an employee of the erstwhile Government Transport Undertaking a Government Deptt. And was a renowned Foot Baller. He has huge cash reserves with the Jammu & Kashmir Bank Branch Fruit Mandi Parimpora which to the belief of the plaintiffs have been withdrawn during the subsistence of the order of Status-Quo from this court. 6) The aforesaid application came to be allowed by the learned trial court in terms of order dated 31.07.2023 and the plaintiffs were allowed to amend the plaint in terms of the permission sought within a period of 14 days. 7) It seems that pursuant to the aforesaid order, plaintiffs filed the amended plaint before the learned trial court. However, defendant No.1 filed an application before the learned trial court seeking rejection of the amended plaint by contending that the amendments incorporated in the amended plaint are beyond the scope of the amendment permitted by the learned trial court, inasmuch as the plaintiffs have not only impleaded additional defendants to the suit but they have also laid a claim to other assets of the deceased by amending the relief clause in the suit, though the same was not permitted by order dated 31.07.2023. 8) The learned trial court vide impugned order dated 26.04.2024 disallowed the application of defendant No.1 and CM(M) No.169/2024 Page No. 5 of 8 observed that the amended plaint is within the parameters of order dated 31.07.2023. 9) The petitioner/defendant No.1 has challenged the impugned order on the grounds that the amendment incorporated by the plaintiffs by way of amended plaint is not in accordance with the permission granted to them in terms of order dated 31.07.2023. It has been contended that the amendment incorporated by the plaintiffs is in violation of Order 6 Rule 18 of CPC and the learned trial court while declining the prayer of defendant No.1 has committed a grave illegality. It has been contended that by virtue of the amended plaint, the plaintiffs have now set up a new case which amounts to defeating the defence of defendant No.1 which she had put up in her written statement. 10) No one has appeared on behalf of the contesting respondents despite service. Therefore, arguments of learned counsel for the petitioner were heard in exparte. 11) As already stated, the contention of the petitioner/defendant No.1 is that the amended plaint filed by the plaintiffs is not within the scope of permission granted by the learned trial court for amendment of the plaint. In order to test the merits of this contention, it would be apt to CM(M) No.169/2024 Page No. 6 of 8 ascertain as to what has been pleaded by the plaintiffs in their amended plaint. 12) If we have a look at the contents of the amended plaint, the plaintiffs have included an amount of Rs.85,000/, the bank account of the deceased under Account No.CD-3051 with J&K Bank SSI Branch, bank account with J&K Bank Branch Fruit Mandi, Parimpora, family pension being paid to petitioner/defendant No.1, the utensils and other household properties in the joint holding sought to be partitioned. It also appears that the plaintiffs by way of amended plaint have pleaded that keys of the shop at Janglat Gali, Lal Chowk Srinagar, have been handed over to one Mohammad Sultan Bhat, who is an office bearer of the Bazar Committee. It has also been pleaded that defendant No.1, with the help of defendant No.4, has broken open the locks of the said shop and placed her brother, defendant No.3, to run the business. The plaintiffs have also amended the prayer clause of the plaint by including the bank accounts, stated above, in the relief of partition and have also sought a mandatory injunction directing defendants No.1 and 3 to deliver possession of the suit property to the plaintiffs. Besides this, the plaintiffs have also impleaded Rouf Ahmad Bhat and Khurshid Ahmad Dar as contesting defendants to the suit. CM(M) No.169/2024 Page No. 7 of 8 13) As already stated hereinabove, in the application seeking permission to amend the plaint, the plaintiffs had sought incorporation of paras (a) to (d), quoted hereinabove, in the plaint by way of amendment. However, when we have a look at the amended plaint, entirely new pleadings have been set up by the plaintiffs which was not within the scope of the permission granted by the trial court in terms of the aforesaid order. The plaintiffs have not only impleaded additional parties to the suit but they have also claimed additional relief in the plaint without seeking permission of the court to amend the plaint to this extent. 14) A pleading can be amended only to the extent allowed by the court. Therefore, a party must carry out amendment strictly in accordance with the permission granted by the court. In the instant case, the plaintiffs had only sought permission to incorporate paras (a) to (d) quoted above, which was duly granted by the court in terms of order dated 31.07.2023 but the plaintiffs not only altered the relief claimed but also impleaded additional parties to the suit, which clearly was not authorized by the trial court vide its order dated 31.07.2023. Thus, the amened plaint filed by the plaintiffs is clearly beyond the scope of order dated 31.07.2023. CM(M) No.169/2024 Page No. 8 of 8 15) It was not open to the learned trial court to allow incorporation of wholesale amendments to plaint without there being any permission to this effect. The learned trial court, while rejecting application of defendant No.1, has failed to exercise the jurisdiction vested in it by law which has resulted in grave miscarriage of justice. Therefore, this is a fit case where this Court should exercise its power of superintendence under Article 227 of the Constitution to set aside the impugned order passed by the learned trial court. 16) For the foregoing reasons, the petition is allowed and the impugned order dated 26.04.2024 passed by the learned trial court is set aside. The plaintiffs are permitted to file fresh amended plaint before the trial court strictly in accordance with the permission granted vide order dated 31.07.2023 passed by the trial court within a period of 14 (fourteen) days from the date this judgment is brought to the notice of the plaintiffs by the trial court. 17) A copy of this order be sent to the learned trial court for information and compliance. (Sanjay Dhar) Judge Srinagar, 04.07.2025 “Bhat Altaf” Whether the judgment is reportable: YES/NO