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2015 DIGILAW 434 (JHR)

Luxmi Pd. Sah v. Parma Nand Mandal

2015-04-06

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 04.07.2014 in Title Suit No. 17 of 2004 whereby, the application under Order VI Rule 17 C.P.C. has been dismissed, the present writ petition has been filed. 2. The petitioner, who is plaintiff in Title Suit No. 17 of 2004, sought the following reliefs: (a) Court be pleased to hold and declare that the plaintiff is the owner and title holder of the suit land and is in possession of the suit lands having erected his residential house thereon where plaintiff and his family members having been living there since in the month of December, 1985. (b) court be pleased to hold and declare that the defendant has got no right, title, interest or possession over the suit lands. (c) Court be pleased to directed the defendant to vacate the suit lands within a specified period failing which period court be further pleased to evict the defendant from the suit lands by the machinery of the court and thereafter put the suit lands in possession of the plaintiff. (d) Costs of the suit be allowed in favour of the plaintiff. (e) Any other relief or reliefs for which the plaintiff entitled be granted in favour of the plaintiff. 3. On the basis of pleadings of the parties, following issues were framed in Title Suit No. 17 of 2004: 1. Is suit as framed maintainable? 2. Has the plaintiff any cause of action for the suit? 3. Is the suit bad for misjoinder and nonjoinder of the necessary party? 4. Is the suit barred by the principles of waiver acquiescence, estoppel and law of limitation? 5. Is the plaintiff entitled to recover the possession of the suit premises? 6. Is the plaintiff entitled to get any relief or reliefs as claimed for in the suit? 4. The learned counsel for the petitioner submits that the application dated 15.05.2014 seeking amendment in the prayer clause of Title Suit No. 17 of 2004 has been erroneously dismissed. It is submitted that in view of the fact that the prayer for eviction of defendant from the suit land and subsequent delivery of possession to the plaintiff have already been made in the Title Suit No. 17 of 2004, the amendment sought in application dated 15.05.2014 would not have caused any prejudice to the defendants. 5. It is submitted that in view of the fact that the prayer for eviction of defendant from the suit land and subsequent delivery of possession to the plaintiff have already been made in the Title Suit No. 17 of 2004, the amendment sought in application dated 15.05.2014 would not have caused any prejudice to the defendants. 5. From the materials brought on record, I find that a specific prayer has been made for vacation of the suit land and for delivery of possession to the plaintiff in Title Suit No. 17 of 2004. The trial court has also framed issue with respect to the entitlement of the plaintiff for recovery of possession of the suit premises. However, from the impugned order dated 04.07.2014, it appears that the application dated 15.05.2014 under Order VI Rule 17 C.P.C. was filed by the plaintiff at the fag end of the trial, that is, after the parties closed their evidence. It is thus apparent that the plaintiff did not seek amendment after the objection of the defendant in the written statement. Since there is an issue already framed by the trial court with respect to entitlement of the plaintiff for recovery of possession of the suit property, I am not inclined to interfere in the matter. In view of the pleadings of the parties and the specific issue framed at Sl. No. 5 as noticed above, the plaintiff would be at liberty to advance arguments on the said issue. 6. With the above observation, the writ petition is disposed of.