Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 2505 (RAJ)

Gandhi Vidhya Mandir Sansthan v. Nazir Khan

2017-11-14

DINESH MEHTA

body2017
JUDGMENT Dinesh Mehta, J. - By way of the present writ petition, the petitioners (defendants) have laid challenge to the order dated 02.06.2017, whereby an amendment application dated 05.01.2015 filed by the respondent (plaintiff) has been allowed. 2. The facts in short pertinent to the present controversy are that the plaintiff had instituted a suit for mandatory and perpetual injunction, seeking an order of restraint qua the defendants that they may not construct the wall on the southern side of the land in question. The said suit was instituted on 07.04.2014. 3. On 09.04.2014, the plaintiff had filed an application, seeking amendment in the plaint in view of the fact that the defendants had raised a wall on the disputed site. Said application under Order 6, Rule 17 of the Code of Civil Procedure, inter alia, sought to incorporate requisite pleadings for challenging the offending construction, which had been allegedly raised after the institution of the suit. The plaintiff''s above referred application came to be allowed by the learned Trial Court, vide its order dated 02.06.2017, with the following observations:- 4. Mr. D.D. Chitlangi, learned counsel appearing for the petitioners finding fault in the order dated 02.06.2017 contended that the plaintiff''s application, seeking amendment was wholly misconceived and not maintainable. He contended that the suit had been filed on 07.04.2014 and the plaintiff had come with an amendment application on 09.04.2014 contending, inter alia, that after institution of the suit, the defendants have raised a wall. He submitted with an awe that this is unbelievable that within such a short span of time, a wall can be raised on the disputed site. Learned counsel for the petitioners further contended that the construction of wall, if at all, assumed to have been raised, the same cannot be believed to be raised within such a short span of time, which indicate that the same was existing even on the date of institution of the suit. In light of these submissions, he argued that these facts were well in the knowledge of the plaintiff, for which the application seeking to incorporate the incidence, cannot be allowed. 5. Per contra, Mr. In light of these submissions, he argued that these facts were well in the knowledge of the plaintiff, for which the application seeking to incorporate the incidence, cannot be allowed. 5. Per contra, Mr. Vikas Bijarnia, learned counsel appearing for the respondent submitted that the Court below has considered the entire material available on record, including various photographs, which clearly show that the disputed wall was not existing on the disputed portion and the same has been raised subsequent to the institution of the suit. 6. Heard learned counsels for the parties and perused the material available on record. 7. The acceptance of application, seeking amendment under Order 6, Rule 17 of the Code of Civil Procedure, is a discretionary order. The Trial Court has allowed the application, while keeping in view the pleadings of the parties and taking into account the nature of the controversy involved. No interference is warranted in the supervisory jurisdiction of this Court, particularly when the Trial Court has allowed an application under Order 6, Rule 17 of the Code of Civil Procedure. 8. Having considered the merit of the amendment application, the fact that the offending wall was already existing on the site or has been constructed after institution of the suit, itself is a matter of evidence. Keeping in view the nature of the suit, wherein the plaintiff has sought a mandatory injunction, seeking an order of restraint against the defendants to the effect that they may be restrained from raising construction of the wall, this Court is of the considered opinion that the amendment as sought by the plaintiff was necessary to completely resolve the dispute between the parties. If the amendment, as prayed by the plaintiff was not allowed, the entire suit filed by the plaintiff would have been rendered infructuous. 9. In view of the discussion aforesaid, this Court does not find any error or infirmity in the impugned order dated 02.06.2017, whereby the plaintiff''s amendment application had been allowed, the same is therefore affirmed. 10. The writ petition is dismissed.