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2016 DIGILAW 823 (HP)

Mansa Ram v. Nand Lal

2016-05-17

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The plaintiff (hereinafter referred to as ‘the petitioner’) maintained a suit for permanent prohibitory injunction before the Court below. When the proceedings were pending in the Court below, the petitioner moved an application under Order 6 Rule 17 of CPC for amendment of the plaint. The said application, after due consideration, was rejected by the learned trial Court and against that order, the present petition under Section 227 of the Constitution of India is maintained by the petitioner with a prayer to set aside the order of the Court below and allow the application filed under Order 6 Rule 17 of CPC. 2. The suit of the petitioner was under Section 38 of Specific Relief Act, restraining the respondent and his agents etc. from causing any interference or damage to the property of the petitioner comprising in Khewat Khatauni No.403/527 min, Khasra No. 942 measuring 1968 sq. mtrs. Situated at Village Chonri Ghati, Ward No.10, Tehsil and District Solan, HP. As per petitioner, respondent is owner in possession of the land situated at Village Chonri Ghati, Ward No.10, Tehsil and District Solan, HP comprised in Khasra No.944, measuring 14-15 bighas and has started construction over Khasra No. 944. While leveling his land, the respondent cut the land in such a manner which caused damage to the land of the petitioner. Resultantly, the land of the petitioner was damaged and standing crop of tomato had also fallen. On the complaint of the petitioner dated 21.7.2008 before the police, the respondent before the police admitted the damage and further agreed that he will construct the retaining wall to protect the land of the petitioner. As per the petitioner, the damage was assessed at Rs.50,000/-. On the complaint of the petitioner dated 21.7.2008 before the police, the respondent before the police admitted the damage and further agreed that he will construct the retaining wall to protect the land of the petitioner. As per the petitioner, the damage was assessed at Rs.50,000/-. The petitioner’s case is that the respondent has not constructed the wall, so, he may be allowed to amend the plaint by inserting following paras:- “Para 2: In alternative, the defendant may kindly be directed to pay cost of danga to the plaintiff as assesses by the expert to the tune of Rs.58,401/-, so that the plaintiff raises the dunga and protect his land from future damages although the cost of dunga will be much higher, as claimed by the plaintiff as per assessment of the expert.” “Para 4: Since the defendant has not cared to obey his assurance and undertaking, hence, he is legally bound to pay the damages, hence, a decree for Rs.50,000/- towards the damages caused by the defendant to the land and stand crop, trees etc. to the plaintiff.” “(a1). In alternative, the defendant may kindly be directed to pay cost of the dunga to the plaintiff as assesses by the expert to the tune of Rs.58,401/- so that the plaintiff raises the dunga and protect his land from future damages although the cost of dunga will be much higher, as claimed by the plaintiff as per the assessment of the expert.” (a2): Further a decree of Rs.50,000/- towards the damages caused by the defendant to the land and standing crop, trees etc. of the plaintiff.” 3. As per petitioner, the amendment will not change the nature of the suit and also not change the cause of action and it will help the Hon’ble Court in pronouncing the judgment conclusively and amendment be allowed as it is in the interest of justice. 4. In reply to the application, averments of the application are denied and it is further denied that any damage was caused to the land of the petitioner. The respondent has further taken the preliminary objection that the application is filed at a belated stage and all the facts were within their knowledge when the suit was filed. It is further the case of the respondent that amendment is sought only to fill in the lacuna. 5. The respondent has further taken the preliminary objection that the application is filed at a belated stage and all the facts were within their knowledge when the suit was filed. It is further the case of the respondent that amendment is sought only to fill in the lacuna. 5. I have heard the learned counsel for the parties and gone through the record. The suit of the petitioner was under Section 38 of the Specific Relief Act for restraining the respondent and his agents not to cause any interference or damage the property of the petitioner and cutting and digging the land in such a manner so as to cause damage to the above stated land. 6. The suit is pending adjudication since the year, 2008 in the Court below. In para-4 of the plaint, the plaintiff has reserved his right to file the suit for damages to the tune of Rs.50,000/-. Now the petitioner has maintained the application after a long time when the case is at the final stages. Order 6 Rule 17 CPC reads as under:- “The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 7. From the bare reading of the Order 6 Rule 17 CPC, it is clear that two ingredients are required to be fulfilled by the petitioner. (i) that the amendment is just and required for determining the real question in controversy between the parties and (ii) that the petitioner inspite of due diligence, could not have raised the matter before the commencement of the trial. As far as condition No.1 is concerned, the lis between the parties is with regard to injunction against the respondent not to cause any interference or damage to the property of the petitioner. Now for issuing such an injunction order, the amendment sought for to include damages is not at all necessary. As far as condition No.1 is concerned, the lis between the parties is with regard to injunction against the respondent not to cause any interference or damage to the property of the petitioner. Now for issuing such an injunction order, the amendment sought for to include damages is not at all necessary. Moreover, the claim of damages is a new claim and has nothing to do with the pending suit. 8. The second ingredient is that the party inspite of due diligence, could not have raised the matter before the commencement of the trial, but in the present case, as per the own admission of the petitioner as averred in the application under Order 6 Rule 17 of CPC, the damage was caused at the time of filing of the suit and petitioner was very much within the knowledge that damage has occurred and so the petitioner cannot be said to have exercised due diligence at that time. 9. The petitioner has reserved in para-4 of the plaint with regard to filing of the suit for damages, in case, the respondent fails or neglects to carry out the construction as per the assurance given before the police. Code of Civil Procedure under Order 2 Rule 2 lays the procedure that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but, a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court and he shall not afterwards sue in respect of that portion of the omitted or relinquished claim except with the leave of the Court. 10. In the present case, the petitioner has not averred that at any point of time, he has availed the leave of the Court to sue afterwards for the claim he has omitted. So, even after applying Order 2 Rule 2 of CPC, the petitioner now cannot sue for the claim he has already omitted. 11. At the same point of time, the suit for damages is also barred by limitation, as the cause of action, as per the petitioner, has accrued to him in the year 2008. 12. The net result of the above discussion is that the application for amendment of the plaint, maintained by the petitioner, in the Court below is without any merits and deserves dismissal. 12. The net result of the above discussion is that the application for amendment of the plaint, maintained by the petitioner, in the Court below is without any merits and deserves dismissal. The findings of the trial Court to this regard call for no interference and the petition is accordingly dismissed. However, in the peculiar facts and circumstances of the case, there is no order as to costs. The parties are directed appear before the Court below on 30.5.2016.