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2008 DIGILAW 211 (RAJ)

Bhagwati Dham Mandir v. Amar Chand

2008-01-24

DINESH MAHESHWARI

body2008
JUDGMENT 1. - At the request and with the consent of the learned counsel for the parties, the matter has been heard finally while dispensing with service on the respondent No.19, the learned trial court concerned and the proforma respondents Nos. 20 to 29 who were initially joined as petitioners to this writ petition but yesterday, while allowing the application moved by the petitioners, were ordered to be transposed as proforma respondents. 2. Shorn of unnecessary details being not relevant for the present purpose, suffice is to notice that by way of this writ petition, the plaintiffs-petitioners have questioned the order dated 17.12.2007 (Annex.24) made by the learned Additional Civil Judge (Junior Division) No.2, Jodhpur in Civil Suit No.230/2000 rejecting the application moved by them seeking to amend the plaint. 3. Assailing the order dated 17.12.2007, learned counsel appearing for the petitioners has essentially contended that the learned trial court has not considered the material available on record and has cursorily rejected the application moved by the petitioners for amendment in the plaint particularly in regard to the subsequent events and the co-related facts and consequential reliefs that are necessary to be added. Learned counsel submitted that the learned trial court has apparently erred in rejecting the application on the ground of delay and in failing to consider that the events as referred by the petitioners particularly those of alienation of the property during the pendency of the suit and moving of the applications for construction permission and the propositions for grant of such permissions all have come up only at the late stage upto the year 2007 and the petitioners have rightly moved the application for amendment after happening of such events. Learned counsel further submitted that the propositions adopted by the learned trial court that the Municipal Counseller against whom personal allegations are sought to be levelled by the petitioners was not required to be joined as party for the reason that the Municipal Corporation and the Urban Improvement Trust are already on record as parties to the suit cannot be said to be proper or justified. Learned counsel yet further submitted that the relief of mandatory injunction as sought to be incorporated by the petitioners naturally arises for the reason of raising constructions by the defendants during the pendency of the suit. 4. Opposing the writ petition, learned counsel Mr. Suresh Shrimali and Mr. Learned counsel yet further submitted that the relief of mandatory injunction as sought to be incorporated by the petitioners naturally arises for the reason of raising constructions by the defendants during the pendency of the suit. 4. Opposing the writ petition, learned counsel Mr. Suresh Shrimali and Mr. S.D.N. Bhatt appearing for the contesting respondents Nos. 1 to 10 and 15 to 18 have strenuously contended that the petitioners have unnecessarily brought the property in question involved in this litigation without any of their rights being infringed and the application for amendment had been moved by the petitioners only in order to prolong the matter. Learned counsel submitted that the petitioners are not acting bona fide and filed this writ petition while joining those persons who had not even extended any instructions to file the petition and some of whom had even stated before the learned trial court that they wish to withdraw from the litigation. Learned counsel further submitted that the matter involved in the application for temporary injunction is pending before the learned trial court after remand by the appellate court on 27.09.2007 (vide Annex.21) though the matter was required to be decided within a month therefrom. Learned counsel, therefore, submitted that the application for amendment in the plaint had not been moved bona fide by the petitioners and has rightly been rejected by the learned trial court and the impugned order calls for no interference in the writ jurisdiction of this Court. 5. Having given a thoughtful consideration to the rival submissions of the contesting parties, and having examined the material placed on record, this Court is unable to sustain the impugned order dated 17.12.2007 (Annex.24). 6. The considerations as adopted by the learned trial court in rejecting the application cannot be said to be the valid and relevant considerations and seem to have been adopted for the learned trial court not examining the record of the case properly. The learned trial court has referred to the history of the litigation, about the date of filing of the suit, about other proceedings the same has gone through including joinder of the defendants Nos. 15 to 18 on 07.04.2007, and then, the delay itself has been treated to be fatal for the purpose of the application for amendment. The learned trial court has referred to the history of the litigation, about the date of filing of the suit, about other proceedings the same has gone through including joinder of the defendants Nos. 15 to 18 on 07.04.2007, and then, the delay itself has been treated to be fatal for the purpose of the application for amendment. The plaintiffs have stated in the application about the construction permission later on issued by the Municipal Corporation including that issued on 29.11.2006 and have levelled allegations in that regard on the officers of the Municipal Corporation and so also on a Member of the concerned committee. Without any comments on the merits of such allegations, the facts that the construction permission was issued on 27.01.2001 and the Divisional Commissioner had passed the appellate order in the month of December 2001 cannot be taken to be reasons sufficient for ignoring the allegations in relation to the construction permission granted on 29.11.2006. The observations that the Chairperson of the Building Committee was not required to be joined because the Urban Improvement Trust and Municipal Corporation are already parties, to say the least, is not in conformity with the requirements of law particularly with regard to the averments sought to be taken by the petitioners as stated in their application under Order 6 Rule 17 CPC (Annex.22). 7. For the application under Order 6 Rule 17 CPC having not received the requisite consideration of the learned trial court on irrelevant principles and with reference to the material placed on record, this Court is clearly of opinion that the order impugned deserves to be set aside and the learned trial court deserves to be directed to decide the application afresh with reference to the material available on record and the law applicable to the case. 8. So far the frame of this writ petition is concerned, yesterday, i.e., 23.01.2008, the petitioners were allowed to transpose other plaintiffs who do not wish to join the writ petition as proforma respondents, of course leaving the effect, if any, of such transposition for consideration at the time of final consideration of the writ petition. 8. So far the frame of this writ petition is concerned, yesterday, i.e., 23.01.2008, the petitioners were allowed to transpose other plaintiffs who do not wish to join the writ petition as proforma respondents, of course leaving the effect, if any, of such transposition for consideration at the time of final consideration of the writ petition. This Court is clearly of opinion that the objections suggested by the learned counsel for the contesting respondents are not of relevance for even a single plaintiff out of several of the plaintiffs could have maintained the writ petition while joining the other persons as proforma respondents and the challenge to the impugned order on their amendment application is not lost only for some of the plaintiffs not joining the challenge. 9. During the course of submissions, learned counsel appearing for the contesting respondents made submissions that certain documents allegedly of subsequent events were filed before the learned appellate court and the appellate court thereafter sent the matter back to the learned trial court along with the documents so filed for consideration of the matter afresh and, therefore, irrespective of pendency of consideration on the application under Order 6 Rule 17 CPC, the learned trial court ought to proceed ahead with disposal of the temporary injunction application particularly when the appellate court directed as back as on 27.09.2007 to decide the temporary injunction application within a month therefrom. The submissions so made appear justified and reasonable. Learned counsel appearing for the plaintiffs-petitioners submitted that in relation to the matter sought to be pleaded now, the petitioners may be permitted to state the same in the application for temporary injunction by way of affidavit and supporting documents. Without pronouncing finally on the propositions as stated on behalf of the petitioners, this Court is of opinion that in the circumstances of the case, the learned trial court having already been directed by the appellate court to decide the temporary injunction application within a month from 27.09.2007 ought to proceed with the matter expeditiously and with reasonable dispatch curbing against any unnecessary delay. 10. The propositions as stated on behalf of the petitioners to submit an affidavit while supplementing the submissions already made in the temporary injunction application could also be given due consideration by the learned trial court keeping in view the requirement of expeditious disposal of the temporary injunction application. 10. The propositions as stated on behalf of the petitioners to submit an affidavit while supplementing the submissions already made in the temporary injunction application could also be given due consideration by the learned trial court keeping in view the requirement of expeditious disposal of the temporary injunction application. However, it may be observed that mere pendency of the application for amendment of the plaint may not by itself be taken to be a ground sufficient to prolong consideration of the matter on temporary injunction application. 11. With the observations aforesaid, this writ petition is allowed to the extent indicated above; the impugned order dated 17.12.2007 (Annex.24) is set aside and the application as moved on behalf of the petitioners shall stand revived for consideration by the learned trial court. In the circumstances of the case, the parties are left to bear their own costs.Petition allowed. *******