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2005 DIGILAW 636 (PNJ)

Ardee Business Centre Pvt. Ltd. v. Ram Kishan

2005-05-24

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. This is plaintiffs petition filed under Article 227 of the Constitution of India with a prayer for quashing order dated 22.2.2005 passed by Civil judge (Junior Division) Gurgaon partially dismissing its application under Order 6 Rule 17 C.P.C., in the civil suit no. 360 of 1999 dated 30.9.1999. The learned Civil Judge has allowed the amendments of typographical error and has rejected the other amendments as unnecessary and malafide. 2. The skeleton facts necessary for the disposal of the instant petition are that the plaintiff-petitioner filed civil suit, No. 360/1999 for a declaration alongwith consequential relief of permanent injunction against the defendant-respondent claiming that it is absolute owner in possession of the suit land, A further prayer was made restraining the defendant-respondent from encroaching upon the suit land or any part thereof. An injunction was sought restraining the defendant-respondent from raising any construction on any part of the land. On 29.8.1999, the Civil Judge had granted ad interim injunction against the defendant-respondent restraining him from raising any construction on khasra No. 709/2. It was alleged that despite the ad interim injunction the defendant-respondent had started raising boundary walls forcibly and illegally which resulted in filing an application for appointment of a Local Commissioner on 5.10.1999. Accordingly, the Local Commissioner was appointed who submitted his report after spot inspection on 16.10.1999. The ad interim injunction issued on 28.9.1999 was continued and keeping in view the report of the Local Commissioner dated 4.10.2000 and the statements of the parties, status quo was ordered to be maintained. When the evidence of the plaintiff petitioner was in progress and the Civil Judge had granted last opportunity on 13.11.2003 posting the case for 10.2.2004. The plaintiff petitioner did not produce any evidence and requested for adjournment on the pretext that there were chances of compromise. No compromise took place and again last opportunity for concluding the evidence of the plaintiff petitioner was granted posting the case for 20.5.2004. However, instead of producing the evidence the plaintiff petitioner on the aforementioned date filed an application under Order 6 Rule 17 C.P.C. in which prayer was made for incorporating the numerous amendments in the plaint. The first kind of amendment sought to be incorporated is with regard to the subsequent developments in the form of raising construction after the submission of the report pf Local Commissioner on 16.10.1999. The first kind of amendment sought to be incorporated is with regard to the subsequent developments in the form of raising construction after the submission of the report pf Local Commissioner on 16.10.1999. The details of amendment have been given in para 3 of the impugned order. The other type of amendment sought to be incorporated is in the nature of typographical mistakes. The details of these typographical mistakes have been given in para 4 of the impugned order. The third type of amendment sought is to have relief of mandatory injunction incorporated for demolishing the construction raised after the submission of the Local Commissioners report. The Civil Judge after issuing notice and hearing arguments dismissed the application by observing as under:- "9. In view of the above discussion and after careful perusal of the case file, this court is of the considered opinion that so far as the present application is concerned ii has been filed unnecessarily to prolong the trial of the case. On 13.11.2003 the plaintiff was given last opportunity to conclude his evidence on 10.2.2004. However, on 10.2.2004 it was stated that there are chances of compromise, therefore, adjournment be granted. Therefore, again last opportunity for plaintiffs evidence was granted for 20.5.2004 but on that date the present application under Order 6 Rule 17 C.P.C. was filed. By way of present application, the applicant-plaintiff wants to incorporate the pleadings regarding the alleged subsequent events taken place despite of status quo order passed by the Court. His application is also regarding seeking amendment of plaint to rectify the typographical errors and to incorporate the factum of obtaining of licence from the Town and Country Planning Department. So far as the amendment as sought for by the applicant-plaintiff regarding incorporation of pleadings qua subsequent events is concerned these find mentioned in the plaint of the applicant-plaintiff as he has prayed that in alternative, in case respondent-defendant succeeded in raising construction over the suit property, then the suit property be restored to original position.... 10. So far as the amendment as sought for by the applicant-plaintiff regarding incorporation of pleadings qua subsequent events is concerned these find mentioned in the plaint of the applicant-plaintiff as he has prayed that in alternative, in case respondent-defendant succeeded in raising construction over the suit property, then the suit property be restored to original position.... 10. In the present case not only the applicant-plaintiff was negligent, rather he was careless also as despite of seeking amendment in the plaint even in the amended pleading the typographical errors are there and even the factum of obtaining the licence by him has not been mentioned and his negligence can be gauged from the fact that it is his plea that he used to get this licence renewed from time to time, even then the same has not been incorporated. As already discussed, so far as the amendment in the garb of subsequent events is concerned the same is already incorporated in the plaint and there is no necessity to incorporate the same. The applicant-plaintiff cannot be allowed to delay the proceedings of the case in the garb of moving such type of frivolous application. Specially when he has availed two last opportunity for concluding his evidence. 11. In these circumstances, not only the present application deserves dismissal with heaviest of costs, rather the interest of justice demands that evidence of the applicant-plaintiff should also be closed. However, this court restrains itself from doing so. The application of the applicant-plaintiff is partly allowed so far as the seeking amendment of typographical error is concerned and rest of the application is dismissed. The applicant-plaintiff is burdened with Rs. 2,000/- as costs...." 3. I have heard Shri Sanjay Vij, counsel for the plaintiff-petitioner at some length. After hearing the learned counsel and perusing the impugned order I am of the considered view that there is no room to interfere in the impugned order because the amendments which were considered necessary in the form of typographical errors have been allowed by the learned Civil Judge whereas the other amendments have been declined. In fact, the Civil Judge has rightly opined that the plaintiff-petitioner was given last opportunity to conclude his evidence on 13.11.2003 by posting the case for the aforementioned purpose on 10.2.2004. On that date adjournment was obtained by the plaintiff petitioner by stating that there were chances of compromise which was accepted. In fact, the Civil Judge has rightly opined that the plaintiff-petitioner was given last opportunity to conclude his evidence on 13.11.2003 by posting the case for the aforementioned purpose on 10.2.2004. On that date adjournment was obtained by the plaintiff petitioner by stating that there were chances of compromise which was accepted. However, again the case was posted for the evidence of the plaintiff-petitioner on 20.5 2004 when the present application under Order 6 Rule 17 C.P.C. was filed. It is in these circumstances that attempt of the plaintiff-petitioner by filing the application under Order 6 Rule 17 C.P.C. has been considered for achieving an oblique motive of prolonging the trial. The so called subsequent events which were sought to be incorporated by amendments have already been mentioned in the plaint by the plaintiff-petitioner because it has already been prayed in the alternative that in case the defendant respondent succeeded in raising the construction over the suit property then the suit property be restored to its original position. Holding that the law regarding amendment of the plaint has not been as liberal as it was in respect of written statement the Civil Judge held that under Order 6 Rule 17 C.P.C. only such amendment could be permitted which could not have been incorporated at the time of filing the plaint by exercise of due diligence by the plaintiff. The plaintiff-petitioner has been found to be negligent in seeking the amendment of typographical errors. It has further been held that it failed to mention about the factum of obtaining licence. It is evident that the suit is pending since 1999 and the amendment which has been sought under the garb of subsequent events are in fact not required to be incorporated as already prayer has been made with the averments in the plaint that in case the defendant respondent succeeded in raising construction then the property be restored to its original position. Therefore, there is no ground to interfere in the impugned order in exercise of jurisdiction of this Court under Article 227 of the Constitution. The petition is wholly without merit and is thus liable to be dismissed. 4. For the reasons stated above this petition fails and the same is dismissed.