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2013 DIGILAW 601 (RAJ)

Tikam Chand v. Jagdish Chandra Joshi

2013-03-20

VINEET KOTHARI

body2013
JUDGMENT 1. - Heard learned counsel for the parties. 2. The plaintiff Tikam Chand & Ors., have filed the present Writ Petition No. 7091/2010 being aggrieved by the order dated 10.5.2010 passed by the learned Civil Judge (Junior Division) Udaipur City (South), Udaipur in Civil Suit No. 70 of 2007, Tikam Chand & Ors. v. Jagdish Chandra , whereby the learned trial Court partly allowed the application for amendment of the plaint under Order 6 Rule 17 C.P.C. The suit for injunction was filed by the plaintiff on 26.4.2007 and after about 6 months, the present application under Order 6 Rule 17 C.P.C. was filed by the plaintiff on 26.10.2007, which came to be partly allowed by the learned trial Court by the impugned order dated 10.5.2010 and against that order, the petitioners have preferred this writ petition. 3. The defendant Jagdish Chandra Joshi has preferred connected Writ Petition No. 3841/2007 aggrieved by the order dated 16.6.2007 by which the learned Additional Dist. Judge No. 2, Udaipur in Appeal No. 18 of 2007, Tikam Chand & Ors. v. Jagdish Chandra Joshi , whereby the learned appellate Court has allowed the appeal of the plaintiffs and setting aside the order of the learned trial Court dated 17.5.2007 has directed by temporary injunction that iron angle staircase constructed by the defendant Jagdish Chandra Joshi be removed forthwith and thereafter the status quo of suit property to be maintained by both the parties. Being aggrieved by that order, the defendant filed the present writ petition. 4. Both the writ petitions have been filed under Article 227 of the Constitution of India. 5. Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi for the petitioners-plaintiffs urged that the suit was filed by the plaintiffs on 26.4.2007 and the plaintiffs had to go out of station in connection with some marriage in the family and therefore, since the suit was drafted in a hurried manner, certain facts could not be pleaded in appropriate manner in the plaint and therefore, to explain those facts in appropriate manner, the present application for amendment under Order 6 Rule 17 C.P.C. was filed by the plaintiff before the learned trial Court, even before the issues were framed by the learned trial Court and therefore, in the interest of justice, the amendment application deserved to be allowed. He submitted that the learned trial Court has only partly allowed the application and while refusing amendment in paras 9, 10, 11, 12 and 13 which also contains consequential amendments in grounds and prayer of the suit, however, the same did not change the character of the suit in any manner. 6. On the other hand, the learned counsel for the defendant Jagdish Chandra Joshi, Mr. O.P. Mehta urged that the learned trial Court has erred in even partly allowing the said application under Order 6 Rule 17 C.P.C. and therefore, the amendments in plaint could not have been allowed by the learned trial Court even partly and the impugned order does, not require any interference by this Court under Article 227 of the Constitution of India as it would alter the nature of the suit. 7. In the connected writ petition, the learned counsel for the defendant Mr. Jagdish Chandra Joshi, Mr. O.P. Mehta urged that the iron angle staircase was constructed on the defendant's own portion of the chowk between the two houses and it did not obstruct any gate of the plaintiffs and therefore, the learned appellate Court below in the impugned order dated 16.6.2007 has erred in directing the removal of such iron angle staircase leading to the first floor of the defendant's own house. He has drawn attention of the court towards the photographs of the site produced before this Court. 8. Opposing these submissions, Mr. R.K. Thanvi Sr. Advocate assisted by Mr. Narendra Thanvi for the plaintiffs Tikam Chand & Ors., submitted that said the iron angle staircase obstructed the gate of the plaintiff and therefore, the learned appellate Court was justified in directing by mandatory injunction to remove the said iron angle staircase. 9. Having heard the learned counsels for the parties, this Court is of the opinion that the Writ Petition No. 7091 of 2010, Tikam Chand & Ors. v. Jagdish Chandra Joshi , deserves to be allowed and amendment of the plaint in the circumstances narrated above deserves to be allowed and therefore, in the interest of justice, the learned trial Court ought to have allowed the amendments fully so that amendments as such could be considered subject to evidence led by the parties. v. Jagdish Chandra Joshi , deserves to be allowed and amendment of the plaint in the circumstances narrated above deserves to be allowed and therefore, in the interest of justice, the learned trial Court ought to have allowed the amendments fully so that amendments as such could be considered subject to evidence led by the parties. Therefore, the order dated 10.5.2010 is modified and the amendments in the plaint sought by the plaintiffs are allowed fully and the amended plaint is directed to be taken on record. Trial to proceed further accordingly. 10. In the connected Writ Petition No. 3841/2007, this Court vide order dated 27.6.2007 while issuing the notices in the writ petition has stayed the effect and operation of the order dated 16.6.2010 of the appellate Court below and therefore, the status quo with the existing iron angle staircase, still continues. This Court is of the opinion that the said stay order and status quo of the existing iron angle staircase existing on the site deserves to be continued during the pendency of trial. 11. Accordingly, the Writ Petition No. 3841 of 2007, Jagdish Chandra Joshi v. ADJ No. 2, Udaipur , is disposed of in terms of interim order dated 27.6.2007 passed by this Court. The learned trial Court is requested to expedite the trial. No order as to costs. A copy of this order be sent to all the parties concerned and the learned trial Court forthwith.Writ Petition disposed of. *******