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2014 DIGILAW 3626 (ALL)

Ashok Kumar Singh v. District Judge, Faizabad

2014-12-04

DEVENDRA KUMAR UPADHYAYA

body2014
JUDGMENT Devendra Kumar Upadhyaya,J. Heard learned counsel for the petitioner Sri R.K.Srivastava and Sri Nand Kishore, learned counsel for respondent nos. 3 and 4. 2. These proceedings instituted under Article 226 of the Constitution of India seek to impeach the order dated 18.03.2013 passed by learned trial court whereby application moved by the petitioner-plaintiff seeking certain amendments in the plaint under Order VI Rule 17 of the CPC has been rejected. The petitioner has also challenged the revisional order dated 17.04.2013 passed by the learned District Judge, Faizabad whereby the revision petition preferred by the plaintiff against the order of the learned trial court dated 18.03.2013 has been dismissed and the order passed by the learned trial court has been upheld. 3. A suit for permanent injunction has been instituted by the petitioner-plaintiff impleading respondent nos. 3 to 5 as defendants in respect of the property shown to have been bounded by the letters A,B,C and D in the map annexed with the plaint. The suit was filed on 02.07.2007. In the map annexed with the suit, the land bounded by the letters A,B,C and D has been claimed to belong to the plaintiff on which the plaintiff has claimed his possession as well. On the eastern side, the land in suit has been shown as kharanja road. On 16.02.2008, the court amin has submitted a report which has been annexed as annexure no.5 to the writ petition. The report submitted by the court amin also contains a map of the spot wherein the property in dispute has been shown to be bounded by the letters v]c]l]n]j]y . In the said map, on the eastern side of the land just before kharanja road a newly built wall ( uo fufeZr jn~nk ) has been shown. 4. The defendants have filed their written statement. However, on 15.03.2013 an application was moved by the plaintiff seeking certain amendments in the plaint. In the said application, it has been stated by the plaintiff that during pendency of the suit, on account of some inadvertence, certain facts which ought to have been incorporated in the plaint could not be incorporated which has necessitated the amendment. However, on 15.03.2013 an application was moved by the plaintiff seeking certain amendments in the plaint. In the said application, it has been stated by the plaintiff that during pendency of the suit, on account of some inadvertence, certain facts which ought to have been incorporated in the plaint could not be incorporated which has necessitated the amendment. The amendment sought in the plaint by moving the said application was to the effect that the certain wall of bricks has been constructed by the defendants on the eastern side of the land in suit three days before the Commission was executed. Prayer to the effect that a decree of mandatory injunction in favour of the plaintiff be passed directing the defendants to demolish the wall and handover the possession of the suit property to the plaintiff was also sought to be added. An objection to the said application was filed by the defendants on 18.03.2013 stating therein that since the application for amendment has been moved at the stage of argument and further that the wall forms part of the house of defendant-Karam Chand, hence there does not any exist justification for allowing the application. 5. The learned trial court, after considering the respective cases put forth by the parties, has passed the impugned order on 18.03.2013, a perusal of which reveals that the learned trial court has given three reasons for rejecting the application for amendment. The first reason given by the learned trial court is that in the application seeking amendment the plaintiff did not disclose as to for what reason application was not moved earlier. The second reason given by the learned trial court is that limitation for instituting suit for mandatory injunction is three years, however, the plaintiff has not stated any specific date on which the construction of the wall was raised by the defendants which would have given cause, neither application has been moved within the limitation provided for instituting the suit for mandatory injunction. The third reason given by the learned trial court for rejecting the prayer made by the plaintiff for amendment in the plaint is that in case the application is allowed, the parties will have to lead evidence again which will unnecessarily prolong the suit. 6. The third reason given by the learned trial court for rejecting the prayer made by the plaintiff for amendment in the plaint is that in case the application is allowed, the parties will have to lead evidence again which will unnecessarily prolong the suit. 6. Learned revisional court also dismissed the revision petition preferred by the plaintiff reiterating the reasons given by the learned trial court that the amendment application does not disclose the length and width of the property and further that the application also does not disclose the date, month and year of the construction of the wall. The revisional court has stated in its order that it appears that application for amendment has been made to overcome the limitation of three years provided under law for seeking the relief for mandatory injunction. 7. What needs to be considered in this case is as to whether the reasons indicated by the learned trial court which have been affirmed by the learned revisional court while rejecting the application moved by the plaintiff are germane. 8. A perusal of the map annexed with the plaint, which forms part of the report of the Commissioner amin, prima faice, gives an impression that the wall appears to have been raised after institution of the suit. In the application seeking amendment, the plaintiff has clearly indicated that the defendants had constructed the wall forcibly and unauthorizedly three days before the Commission was executed. 9. It is not in dispute that the Commission was executed on 16.02.2008, thus, finding recorded by the learned court below that the date or time of construction has not been disclosed in the application moved by the plaintiff for seeking amendment in the plaint does not appears to be correct. 10. As regards the other reason that by amendment the prayer for grant of relief of mandatory injunction has been sought to be added, for which limitation is three years, it is to be noticed that the prayer which has been sought to be added through the amendment application is not confined to mandatory injunction for demolishing the wall; rather the said relief is coupled with the relief of possession as well. The prayer which has been sought to be added may not be very happily worded but in case where a decree for possession by demolition is sought, in my considered opinion, the limitation to institute such a suit will be governed by entry 64 or 65, as the case may be, of the schedule appended to the Limitation Act, 1963. Thus, the view taken by the learned court below runs contrary to the view expressed above, hence is not sustainable. 11. As regards the observation made by the learned trial court that no reason has been given by the plaintiff as to why the application seeking amendment was not moved earlier, the assertion made in the application may be referred to, according to which, the plaintiff had clearly stated that during pendency of the suit, certain facts could not be stated on account of inadvertence. 12. The suit has been filed by the petitioner and any delay in disposal thereof will have consequences on the petitioner himself. However, because of the presumed delay in disposal of the suit, the substantive issue, that the wall has been raised by the defendants during pendency of the suit, cannot be lost sight of. In case the plaintiff is not permitted to incorporate the amendment sought by him, presuming that the suit for permanent injunction is decreed, such a decree will be of no avail to the plaintiff unless and until, the possession of the property in suit is handed over, that too, after demolition of the wall which has come into existence during pendency of the suit. 13. In view of above discussions, the orders passed by the learned trial court and also by the revisional court deserve to be quashed. 14. The writ petition is, thus, allowed and the order dated dated 18.03.2013 passed by learned trial court in Original Suit No.220 of 2007 and the order dated 17.04.2013 passed by the learned District Judge, Faizabad in Revision Petition No.53 of 2013 are hereby quashed. 15. Learned trial court is directed to consider the application moved by the petitioner for amendment a fresh in accordance with law, keeping in view the provisions contained under Order VI Rule 17 of CPC,specially the proviso appended to Rule 17, after giving appropriate opportunity to the parties. 16. 15. Learned trial court is directed to consider the application moved by the petitioner for amendment a fresh in accordance with law, keeping in view the provisions contained under Order VI Rule 17 of CPC,specially the proviso appended to Rule 17, after giving appropriate opportunity to the parties. 16. The proceedings of the said application shall be expedited and concluded within a period of six weeks from the date of production of certified copy of this order. 17. There will be no order as to cost.