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2015 DIGILAW 1879 (HP)

SUSHIL GUPTA v. HPSEB

2015-12-14

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. 1. Order dated 5.8.2015 passed by learned Civil Judge (Senior Division), Court No.1 Paonta Sahib, District Sirmaur in an application under Order 6, Rule 17 of the Code of Civil Procedure registered as CMA No.16 of 2015 is under challenge in this petition. 2. The record available at this stage reveals that the petitioners (plaintiffs in the trial Court) have filed the suit for permanent prohibitory injunction restraining the defendants from installation of 3300 KV Electricity Line and erection of Electricity Poles over their land bearing Khatauni No.88min/191, Kite 32, measuring 02-06-37 hectares situated in Mauza Up Sampada Batamandi, Tehsil Paonta Sahib, District Sirmaur, H.P. The suit after settlement of issues is presently at the stage of plaintiffs evidence. The plaintiffs, however, have filed an application under Order 6, Rule 17 CPC to add the following by way of para 1(a) in the head-note of the suit: "with relief of mandatory injunction directing the defendants to remove the installed poles and 3300 KV electricity line over the suit land, which has been installed without any sanctioned plan." 3. Similarly following lines also sought to be added in the prayer clause of the suit. "with relief of mandatory injunction directing the defendants to remove the installed poles and 3300 KV electricity line over the suit land, which has been installed without any sanctioned plan." 4. Further the following para was also sought to be inserted after para 3 and before para 4 of the plaint. "(a) That during the pendency of suit in the second week of August, 2012, after passing the order dated 4-8-2012 of stay order by this Ld. court, the defendants openly without any respect to the order of this Ld. Court, installed the electricity poles and 3300 KV electricity line over the suit land, having knowledge of present suit and order dated 4.8.2012 and now the same may kindly be ordered to be removed by way of mandatory injunction." 5. In para 4 of the plaint after word poles and before word and the following lines were sought to be added: "And lastly in the second week of August, 2012, when the defendants openly during the pendency of this suit and having the knowledge of order dated 4-8-2012 installed the electricity lines and electricity poles over the suit land." 6. In para 4 of the plaint after word poles and before word and the following lines were sought to be added: "And lastly in the second week of August, 2012, when the defendants openly during the pendency of this suit and having the knowledge of order dated 4-8-2012 installed the electricity lines and electricity poles over the suit land." 6. The amendment to the above extent in the plaint has been sought to be made on the ground that the respondent-Board has erected the poles during the pendency of the suit after 4th August, 2012. 7. The stand of the respondent/defendant-Board, however, is that the day when the suit filed the installation work of 3300 KV sub-station was almost complete. Though it has been urged that poles were also erected, however, in view of the reply to the application that the work of installation of 3300 KV substation was almost complete, it would not be improper to conclude that the poles were not erected in the land of the plaintiffs when the suit was filed by them because had the poles been erected, there is no reason not to plead this aspect of the matter in the plaint originally filed. The issues in the suit may have been settled on 18.10.2012 i.e. after 4.8.2010 when the poles, according to the plaintiffs, were erected over the suit land. The trial also commenced on the settlement of issues, however, it cannot be said that during the course of the trial no amendment in the pleadings is permissible. 8. In the case in hand, the day when the suit was instituted, poles were not erected. Allowing the plaintiff to amend the plaint would be in the ends of justice and also to avoid the multiplicity of litigation and other legal complications of like nature. Therefore, the trial Court should have allowed the application and permitted the plaintiff to amend the plaint. The order under challenge being legally and factually unsustainable is quashed and set aside. Consequently the application filed for amendment of the plaint succeeds and the same is accordingly allowed. The trial Court to place on record the amended plaint and proceed further in the suit in accordance with law. 9. Before parting, it is made clear that the observations herein above shall remain confined to the decision of the present petition. 10. Consequently the application filed for amendment of the plaint succeeds and the same is accordingly allowed. The trial Court to place on record the amended plaint and proceed further in the suit in accordance with law. 9. Before parting, it is made clear that the observations herein above shall remain confined to the decision of the present petition. 10. The petition is accordingly disposed of so also the pending application(s), if any.