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2014 DIGILAW 1664 (RAJ)

Mani Ram v. Civil Judge (JD), Nagar

2014-10-13

R.S.CHAUHAN

body2014
JUDGMENT 1. - Aggrieved by the order dated 22.02.2008 passed by the Civil Judge (Jr. Div.), Nagar, District Bharatpur whereby the learned Magistrate had rejected an application filed by the petitioners under Order 6, Rule 17 CPC for amending the plaint, the petitioners have approached this court. 2. Mr. L.L. Gupta, the learned counsel for the petitioners, has contended that in the plaint the petitioners had merely mentioned the fact that in the area of land marked as "A, B, C, D", the respondent-defendants have dug a foundation and are threatening to raise construction. Subsequently, the petitioners moved an application under Order 6, Rule 17 CPC whereby they sought amendment in the plaint, inter alia, on the ground that the walls on the said plot were being raised by the respondents. However, the learned Magistrate has erroneously declined the amendment on the ground that the fact with regard to existence of the plot in dispute is already mentioned in the plaint. Therefore, no further amendment is permissible. 3. Secondly, despite having observed this fact that existence of plot, and the foundation has already been mentioned in the plaint and that subsequent development with regard to the plot is deemed to be mentioned in the plaint, yet when the petitioner filed his affidavit and mentioned the subsequent development in Para-4 of his affidavit, by order dated 25.03.2008 the same learned Magistrate has disallowed Para-4 of the affidavit by which the subsequent development of the case was being brought through affidavit. Para-4 has been disallowed, inter alia, on the ground that it is contrary to the plaint. 4. Thirdly, the learned Magistrate has taken a self-contradictory stand. On the one hand, he does not allow the amendment on the ground that the facts are already mentioned in the plaint, yet on the other hand, he disallows a para in the affidavit on the ground that it is contrary to the plaint. Therefore, the total effect is that the subsequent event of the case cannot be brought to the notice of the trial court. However, if the petitioners are to seek a mandatory injunction against the respondent-defendants then even the subsequent events are relevant for appreciating the evidence. Hence, according to the learned counsel, the amendment should have been allowed by the learned Magistrate. 5. On the other hand, Mr. However, if the petitioners are to seek a mandatory injunction against the respondent-defendants then even the subsequent events are relevant for appreciating the evidence. Hence, according to the learned counsel, the amendment should have been allowed by the learned Magistrate. 5. On the other hand, Mr. Bipin Gupta, the learned counsel for the respondent-defendants, has vociferously argued that the entire issue is with regard to any construction which is being allegedly carried out within 75 ft. from the canter of the road. According to him, the plot in question marked "A, B, C, D" was already mentioned in the plaint. Therefore, there was no need for the learned Magistrate to permit the petitioners to bring the subsequent event on record by way of amendment. 6. Secondly, the petitioners have not challenged the order dated 25.03.2008 whereby the learned Magistrate has disallowed Para-4 of the affidavit filed by the petitioners. They have merely challenged the order by which amendment was disallowed by the learned Magistrate. Therefore, according to him, the order dated 22.02.2008 has been passed legally. Hence, it should be sustained. 7. Heard the learned counsel for the parties and perused the impugned order. 8. Admittedly, the petitioners had filed a suit for permanent and mandatory injunction in relation to what they claimed was an encroachment on a strip of land lying next to the road which was being used by the villagers. They also claimed that even this strip of land was being used by them and by the villagers for their movement and transportation. A bare perusal of the plaint clearly reveals that in Para-4 the petitioners had merely mentioned the fact that the respondent-defendants had started digging a foundation in a plot marked as "A, B, C, D". However, subsequently the respondent-defendants started raising walls on the said disputed plot. Thus, the petitioners moved an application for bringing the subsequent events of raising construction to the notice of the trial court by filing an application for amending the plaint and by adding the subsequent construction in Para-4 of the plaint. Surprisingly, the learned Magistrate has rejected that application ostensibly on the ground that Para-4 contains a reference of the plot. But the learned Magistrate has ignored the fact that Para-4 did not contain the subsequent events which were to be introduced through an application for amendment. Surprisingly, the learned Magistrate has rejected that application ostensibly on the ground that Para-4 contains a reference of the plot. But the learned Magistrate has ignored the fact that Para-4 did not contain the subsequent events which were to be introduced through an application for amendment. Thus, the learned Magistrate was certainly unjustified in rejecting the application especially when introduction of the said fact would not have changed the nature of the suit. 9. It is rather ironical that on the one hand, the learned Magistrate has refused to permit the petitioners to amend the plaint on the ground that subsequent events have already been mentioned as mentioned in part of the plaint, yet on the other hand, he disallows Para-4 of the affidavit, inter alia, on the ground that Para-4 of the affidavit is contrary to the plaint. The stand taken by the learned Magistrate is self-contradictory. Such a stand cannot be permitted in law. Even if the order dated 25.03.2008 is not under challenge before this court, even then, this court has to merely consider the issue whether the amendment should have been allowed or not. 10. Since the subsequent development or events would be germane to the controversy in issue, it was imperative to permit the petitioners to bring the subsequent development on record. 11. For the reasons stated above, this petition is, hereby, allowed. The impugned order dated 22.02.2008 is quashed and set aside. The learned Magistrate is directed to permit the petitioners to amend the plaint within a period of one month from the date of receipt of certified copy of this judgment.Petition allowed. *******