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2015 DIGILAW 111 (ALL)

Ahmad Nabi v. Ram Deen

2015-01-16

RAN VIJAI SINGH

body2015
JUDGMENT Ran Vijai Singh, J. Heard Sri Arvind Kumar Srivastava, learned counsel for the petitioners. 2. By means of this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the orders dated 30.1.2014 passed by the Civil Judge (Senior Division) Mainpuri in Original Suit No. 360 of 2009 (Ahmad Nabi and another Vs. Ram Deen and others) and order dated 18.8.2014 passed by the Additional District Judge/Special Judge (S.C.& S.T.Act) Mainpuri in Civil Revision No. 24/2014 (Ahmad Nabi and another Vs. Ram Deen and others). 3. Vide order dated 30.1.2014, application filed by the petitioners under Order 6, Rule 17 of Code of Civil Procedure (in short 'C.P.C.') has been rejected by the Civil Judge (Senior Division) Mainpuri. Whereas by the subsequent order dated 18.8.2014, revision filed by the petitioners against the order dated 30.1.2014 has been dismissed. 4. The facts giving rise to this case are that the petitioners, herein, have filed a suit for permanent injunction against the respondents. In the aforesaid suit, after exchange of pleadings, issues were framed and date was fixed for evidence. At this stage, the petitioners, herein, have filed an application under Order 6, Rule 17 of C.P.C. for amending the plaint on 30.5.2013. The amendment was sought to the effect that during the pendency of the suit, after encroaching the land of the petitioner, boundary wall has been raised by the defendants/respondent, therefore the boundary wall raised on the petitioners' land by the defendants/respondent be demolished on their own cost. 5. To the aforesaid application, an objection was filed by the otherside stating therein that the boundary, which is said to have been raised during the pendency of the suit, has already been raised even prior to the filing of the suit and the averment to this effect has been made in paragraph two of the written statement. It has also been stated that the existence of boundary wall has also come in the report of the Advocate Commissioner. Further it has been filed after commencement of trial, therefore the same is not maintainable. 6. The Civil Judge (Senior Division) looking into the facts of the case believing on the version of the respondents came to the conclusion that the amendment, which is being sought, was in existence even prior to filing of the suit as per averments made in para 2 of the written statement. 6. The Civil Judge (Senior Division) looking into the facts of the case believing on the version of the respondents came to the conclusion that the amendment, which is being sought, was in existence even prior to filing of the suit as per averments made in para 2 of the written statement. The existence of the boundary wall has also come in the report of the Advocate Commissioner but the petitioners have not filed amendment application immediately after filing of the suit. Further there was lack of due diligence in filing the application as required in Proviso to Order 6, Rule 17 of C.P.C. and therefore, he rejected the amendment application. The revisional court has taken the same view and dismissed the revision filed by the petitioners. 7. Learned counsel for the petitioners could not dispute the factum of paragraph two of the written statement filed by the otherside wherein it has been stated that there is a partition wall on the spot. The factum of filing of Commissioner' report, its contents has also not been disputed which contains the existence of the wall in dispute, which is said to have been raised during the pendency of the suit. Learned counsel for the petitioner has tried to argue that some additional construction has been made on the spot but from the perusal of the amendment application, which has been brought on record as annexure 3 to the writ petition, it do not transpire that such averments have been made, therefore on the oral submissions, no reliance can be placed. 8. In view of foregoing discussions, I do not find any error in the orders impugned. The writ petition lacks merit and it is hereby dismissed.