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2018 DIGILAW 646 (HP)

Jagdish Chand Sharma v. Nand Lal

2018-04-16

CHANDER BHUSAN BAROWALIA

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JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The present petition is maintained by the petitioner, under Article 227 of the Constitution of India, for quashing and setting the impugned order, dated 23.5.2017, passed by learned Civil Judge (Junior Division) Court No. IV, Hamirpur, District Hamirpur, H.P, in CMA No.368 of 2016, in Civil Suit No.39 of 2013 titled Nand Lal vs. Jagdish Chand Sharma, whereby the learned Court below, has dismissed the application of the petitioner/defendant filed, under Order 6 Rule 17 read with section 151 of the Code of Civil Procedure. 2. Brief facts giving rise to the present petition are that the respondent/plaintiff (hereinafter referred to as the ‘plaintiff’) maintained a suit for Specific Relief Act and Permanent Prohibitory Injunction restraining the petitioner/defendant (hereinafter referred to as the ‘defendant’) from interfering and raising any type of construction in the suit land and changing the nature of same comprised in Khata No.182, Khatauni No.202, Khasra No.560, area 9 marlas, situated in Tika Lag, Tappa Mewa, Tehsil Bhoranj, District Solan, Himachal Pradesh (hereinafter referred to as ‘suit land’) and in case, the defendant succeeds in raising forcible construction over the suit land, then suit for possession by way of demolition of such construction. During the pendency of suit, petitioner/defendant moved an application, under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement, but the learned Court below dismissed the said application, vide order, dated 23.5.2017. Hence, the present petition. 3. Reply to the petition has been filed and it has been averred that initially, the case was maintained before the learned Court below on 8.3.2013, written statement was filed by the defendant on 13.5.2013 claiming himself to be owner of the suit land, which adjoins the suit land. Issues were framed on 6.11.2013 and the parties led their respective evidence and thereafter, the case was fixed for arguments, but on the said date, application for amendment of written statement was filed. By way of amendment, the very nature of defence, as was taken in the written statement by the defendant claiming himself to be owner of the suit land. So, the present petition has been filed just to delay the matter and thus, is liable to be dismissed. 4. By way of amendment, the very nature of defence, as was taken in the written statement by the defendant claiming himself to be owner of the suit land. So, the present petition has been filed just to delay the matter and thus, is liable to be dismissed. 4. Learned counsel appearing on behalf of the petitioner has argued that to dispense with the substantial justice inter se the parties, application under Order 6 Rule 17 of the Code of Civil Procedure, is required to be allowed. He has further argued that the learned Court below has failed to exercise its jurisdiction and thus, the present petition may be allowed. 5. On the other hand, Mr. Ajay Sharma, learned counsel appearing on behalf of the respondent has strenuously argued that the impugned order passed by the learned Court below is just, reasoned and as per law. He has further argued that the petitioner is now making a new case, which is not permitted and so, the learned Court below has rightly dismissed the application and prays for dismissal of the petition. 6. To appreciate the arguments of learned counsel for the parties, I have gone through the record in detail. 7. From the perusal of record, it is clear that the plaintiff at this stage, wants to amend his plaint by taking a plea that he has purchased the vacant land alongwith house from one Shri Hans Raj son of Shri Kirlu Ram, vide agreement, dated 26.1.1992, for a consideration of Rs.15,000/-. Learned counsel for the respondent has submitted that it will be a denovo trial and setting up of a new case. In the written statement, the petitioner/defendant has specifically stated that he is owner of the suit land meaning thereby that he is owner of the land, but though not specifically averred by adding words that he has purchased the land from one Shri Hans Raj son of Shri Kirlu Ram. So, this Court finds that no new case is going to be set up and amendment is only explaining the contents of written statement in detail, the amendment as sought for, is necessary for adjudicating the lis inter se the parties and it will help for a proper adjudication of the present case. So, this Court finds that no new case is going to be set up and amendment is only explaining the contents of written statement in detail, the amendment as sought for, is necessary for adjudicating the lis inter se the parties and it will help for a proper adjudication of the present case. At this moment, taking into consideration these facts, this Court comes to the conclusion that amendment as sought for is necessary and the same cannot be discarded for the reason that the application was not maintained immediately after filing of the written statement. 8. The net result of the aforesaid discussion is that the learned Court below should have allowed the amendment, but by not allowing it, the learned Court below has failed to exercise its jurisdiction vested in it. Accordingly, the present petition is allowed and the impugned order dated 23.5.2017, passed by the learned Court below is set aside. So, it is ordered that the amended written statement be taken on record and thereafter, the learned Court below will proceed with the matter in accordance with law. Parties, through their learned counsel, are directed to appear before the learned Court below on 16th May, 2018. However, the parties are left to bear their own costs. Ordered accordingly. Pending applications, if any, shall also stands disposed of.