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2019 DIGILAW 1256 (HP)

Kishori Lal v. Darshan Kumar

2019-08-30

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present petition, under Article 227 of the Constitution of India for quashing and setting aside the impugned order dated 4.6.2018, passed by the learned Civil Judge (Senior Division), Court No.II, Amb, District Una, in Civil Suit No.212 of 2011, whereby the learned Court below has dismissed an application, under Order 6 Rule 17 read with section 151 of the Code of Civil Procedure. 2. The key facts, giving rise to the present petition are that the petitioners-plaintiffs (hereinafter referred to as 'plaintiffs') maintained a suit for permanent prohibitory injunction restraining the respondents-defendants (hereinafter referred to as 'defendants') from interfering in any manner, taking forcible possession, installed electric pole and also restrained them from putting the electrical wires and changing the nature of suit land measuring 0-05-85 hectares bearing Khewat No.615, Khatauni No.882, Khasra No.3089/1262, as entered in jamabandi for the year 2005-06, situated in Upmahal Andora Nichla, Mauza Andora, Tehsil Amb, District Una. 3. The respondents-defendants contested the suit by way of filing separate written statement and it is stated that the electrical poles erected in the month of May, 2011, on the road side near the boundary of the land of the plaintiffs and in the presence of parties. The electric pole, which has been installed by the Electricity Department will not cause any hindrance to the land of the plaintiffs and after attaching the electricity wire, no any obstruction or hindrance will cause to the plaintiffs. During the pendency of suit, plaintiffs maintained an application, under Order 6 Rule 17 read with section 151 of the Code of Civil Procedure, for amendment of the plaint on the grounds that the defendants in connivance with each other forcibly erected poles and laid wires on it but, the said application was dismissed by the learned Court below on 4.6.2018. 4. Feeling aggrieved, the impugned order, dated 4.6.2018, passed by the learned Court below, the petitioners maintained the present petition. 5. Learned counsel appearing for the petitioners has argued that the amendment was required to be allowed in order to proper adjudicate the case, as it was necessitated for the reason that after filing of the present suit, respondents have erected the electric pole on the suit land and now, it was required to be added. 5. Learned counsel appearing for the petitioners has argued that the amendment was required to be allowed in order to proper adjudicate the case, as it was necessitated for the reason that after filing of the present suit, respondents have erected the electric pole on the suit land and now, it was required to be added. In support of his arguments, he has relied upon the judgment in Estralla Rubber vs. Dass Estate (P) Ltd., (2001) 8 SCC 97 and contended that the application can be filed at any stage of the suit and the learned Courts are also required to allow the same, to meet the ends of justice. He has also relied upon the judgment in Mohinder Kumar Mehra vs. Roop Rani Mehra and others, (2018) 2 SCC 132 , on this aspect. 6. Learned counsel appearing for respondents No.1 and 2 has argued that the present petition is not maintainable, as the application was filed quite late before the learned Court below. He has argued that as per the petitioner himself, electric pole erected in the year 2011 and now, the present application has been filed, at the belated stage. He has further argued that there is no case made out in favour of the petitioners to allow the present petition. 7. Learned counsel appearing for respondents No.4 to 8 has argued that the present petition is not maintainable and the impugned order passed by the learned Court below suffers from no illegality. 8. In rebuttal thereto, learned counsel appearing for the petitioners has also relied upon the judgment in Vineet Kumar vs. Mangal Sain Wadhera, (1985) AIR SC 817 and argued that even if, there is admission with respect to the erecting of electric pole in the year 2011, the present application be allowed, as it is required to meet the ends of justice. 9. To appreciate the arguments of learned counsel appearing for the parties, I have gone through the entire record in detail. 10. 9. To appreciate the arguments of learned counsel appearing for the parties, I have gone through the entire record in detail. 10. Applying the aforesaid law, as cited by the learned counsel appearing for the petitioners in Estralla Rubber vs. Dass Estate (P) Ltd., (2001) 8 SCC 97 , the same is not applicable to the facts and circumstances of the present case, a serious prejudice would be caused to the respondents in case, the application is allowed, at this stage, as the factum is with respect to the laying of electric lines under the Electricity Act and plaintiffs have waited for five years, even after having knowledge of erection of the electric pole in making the application for amendment. 11. In Mohinder Kumar Mehra vs. Roop Rani Mehra and others, (2018) 2 SCC 132 , as in the instant case, the case of the plaintiff was that he has led evidence even on the amended pleadings. The delay in the present case is otherwise also inordinate delay i.e. five years, so, the aforesaid judgment is also not applicable to the facts of the present case. 12. In Vineet Kumar vs. Mangal Sain Wadhera, (1985) AIR SC 817, is also not applicable to the facts of the present case, as the amendment sought is after a long time. The question, which is involved in the present case is totally different, then the same cannot be allowed, at this stage. 13. After hearing learned counsel appearing for the parties, this Court finds that the present suit was maintained for permanent prohibitory injunction restraining the defendants from interfering in any manner, taking forcible possession and forcibly installing the electric pole and electric wires on the suit land in the year 2011 i.e. 20.11.2011. Replication was filed on 14.6.2012 and it is admitted that the defendants had installed the electric pole, but an application, under Order 6 Rule 17 read with section 151 of the Code of Civil Procedure was maintained in the year 2016. The amendment, as sought is after a long time. The question, which is involved in the present case is totally different and the same cannot be allowed at this stage. The amendment, as sought is after a long time. The question, which is involved in the present case is totally different and the same cannot be allowed at this stage. In the present case, the applicant-petitioner has moved the instant application for amendment of the plaint averring therein that the defendants during the pendency of suit on 18.11.2011 have forcibly erected poles and laid electric wires over the suit land. From the perusal of record which shows that the present suit has been maintained on 19.10.2011, at that time, defendants have started digging the pit for installation of electric poles and are threatening to install the same over the suit land. At that time, the averments of the plaintiff has been contested by defendants No.4 to 8 by filing written statement on 27.12.2011 by alleging that the electric poles were already erected in the month of May, 2011 i.e. on the road side near the boundary of the land of the plaintiff. In replication, the plaintiff in para-2 has also specifically admitted that the electric poles over the suit land have been installed after passing stay order. Now, the plaintiff has moved, an application under Order 6 Rule 17 of the Code of Civil Procedure, after more than five years averring that during the pendency of suit, defendants have encroached upon the suit land by way of erecting poles in the year 2011, when the case was fixed for defendants evidence. If it is presumed that the electric poles were erected after institution of the suit land on 18.11.2011, what prevented the plaintiff from moving an application for amendment of the plaint, has not been mentioned by the applicant in his pleadings. It is settled law that the provisions of Order 6 Rule 17 have to be applied more liberally qua the written statement viz-a-viz plaint. However, in the instant case, it was always open to the plaintiff to file the present application at earlier stage. It is settled law that the provisions of Order 6 Rule 17 have to be applied more liberally qua the written statement viz-a-viz plaint. However, in the instant case, it was always open to the plaintiff to file the present application at earlier stage. The plaintiff has waited for almost five years to move an application for the amendment, when the suit was fixed for defendants evidence whereas from the perusal of record, it is clear that in the year 2011, the plaintiff was in the knowledge of the aforesaid facts, which, he now wants to insert by way of amendment and now at this belated stage, it cannot be allowed, as the plaintiff kept on sleeping over the matter for five years and further the amendment is otherwise also not necessitated for the proper adjudication of the case. So, this Court finds that in these circumstances, there is no illegality and infirmity in the impugned order, dated 4.6.2018, passed by the learned Court below. 14. In view of what has been stated hereinabove, the present petition sans merits, deserves dismissal and is accordingly dismissed. Parties through their learned counsel are directed to appear before the learned Court below on 24th September, 2019. No order as to costs. Pending application(s), if any, also stand (s) disposed of. JUDGMENT : Chander Bhusan Barowalia, J. The present petition, under Article 227 of the Constitution of India for quashing and setting aside the impugned order dated 4.6.2018, passed by the learned Civil Judge (Senior Division), Court No.II, Amb, District Una, in Civil Suit No.212 of 2011, whereby the learned Court below has dismissed an application, under Order 6 Rule 17 read with section 151 of the Code of Civil Procedure. 2. The key facts, giving rise to the present petition are that the petitioners-plaintiffs (hereinafter referred to as 'plaintiffs') maintained a suit for permanent prohibitory injunction restraining the respondents-defendants (hereinafter referred to as 'defendants') from interfering in any manner, taking forcible possession, installed electric pole and also restrained them from putting the electrical wires and changing the nature of suit land measuring 0-05-85 hectares bearing Khewat No.615, Khatauni No.882, Khasra No.3089/1262, as entered in jamabandi for the year 2005-06, situated in Upmahal Andora Nichla, Mauza Andora, Tehsil Amb, District Una. 3. 3. The respondents-defendants contested the suit by way of filing separate written statement and it is stated that the electrical poles erected in the month of May, 2011, on the road side near the boundary of the land of the plaintiffs and in the presence of parties. The electric pole, which has been installed by the Electricity Department will not cause any hindrance to the land of the plaintiffs and after attaching the electricity wire, no any obstruction or hindrance will cause to the plaintiffs. During the pendency of suit, plaintiffs maintained an application, under Order 6 Rule 17 read with section 151 of the Code of Civil Procedure, for amendment of the plaint on the grounds that the defendants in connivance with each other forcibly erected poles and laid wires on it but, the said application was dismissed by the learned Court below on 4.6.2018. 4. Feeling aggrieved, the impugned order, dated 4.6.2018, passed by the learned Court below, the petitioners maintained the present petition. 5. Learned counsel appearing for the petitioners has argued that the amendment was required to be allowed in order to proper adjudicate the case, as it was necessitated for the reason that after filing of the present suit, respondents have erected the electric pole on the suit land and now, it was required to be added. In support of his arguments, he has relied upon the judgment in Estralla Rubber vs. Dass Estate (P) Ltd., (2001) 8 SCC 97 and contended that the application can be filed at any stage of the suit and the learned Courts are also required to allow the same, to meet the ends of justice. He has also relied upon the judgment in Mohinder Kumar Mehra vs. Roop Rani Mehra and others, (2018) 2 SCC 132 , on this aspect. 6. Learned counsel appearing for respondents No.1 and 2 has argued that the present petition is not maintainable, as the application was filed quite late before the learned Court below. He has argued that as per the petitioner himself, electric pole erected in the year 2011 and now, the present application has been filed, at the belated stage. He has further argued that there is no case made out in favour of the petitioners to allow the present petition. 7. He has argued that as per the petitioner himself, electric pole erected in the year 2011 and now, the present application has been filed, at the belated stage. He has further argued that there is no case made out in favour of the petitioners to allow the present petition. 7. Learned counsel appearing for respondents No.4 to 8 has argued that the present petition is not maintainable and the impugned order passed by the learned Court below suffers from no illegality. 8. In rebuttal thereto, learned counsel appearing for the petitioners has also relied upon the judgment in Vineet Kumar vs. Mangal Sain Wadhera, (1985) AIR SC 817 and argued that even if, there is admission with respect to the erecting of electric pole in the year 2011, the present application be allowed, as it is required to meet the ends of justice. 9. To appreciate the arguments of learned counsel appearing for the parties, I have gone through the entire record in detail. 10. Applying the aforesaid law, as cited by the learned counsel appearing for the petitioners in Estralla Rubber vs. Dass Estate (P) Ltd., (2001) 8 SCC 97 , the same is not applicable to the facts and circumstances of the present case, a serious prejudice would be caused to the respondents in case, the application is allowed, at this stage, as the factum is with respect to the laying of electric lines under the Electricity Act and plaintiffs have waited for five years, even after having knowledge of erection of the electric pole in making the application for amendment. 11. In Mohinder Kumar Mehra vs. Roop Rani Mehra and others, (2018) 2 SCC 132 , as in the instant case, the case of the plaintiff was that he has led evidence even on the amended pleadings. The delay in the present case is otherwise also inordinate delay i.e. five years, so, the aforesaid judgment is also not applicable to the facts of the present case. 12. In Vineet Kumar vs. Mangal Sain Wadhera, (1985) AIR SC 817, is also not applicable to the facts of the present case, as the amendment sought is after a long time. The question, which is involved in the present case is totally different, then the same cannot be allowed, at this stage. 13. 12. In Vineet Kumar vs. Mangal Sain Wadhera, (1985) AIR SC 817, is also not applicable to the facts of the present case, as the amendment sought is after a long time. The question, which is involved in the present case is totally different, then the same cannot be allowed, at this stage. 13. After hearing learned counsel appearing for the parties, this Court finds that the present suit was maintained for permanent prohibitory injunction restraining the defendants from interfering in any manner, taking forcible possession and forcibly installing the electric pole and electric wires on the suit land in the year 2011 i.e. 20.11.2011. Replication was filed on 14.6.2012 and it is admitted that the defendants had installed the electric pole, but an application, under Order 6 Rule 17 read with section 151 of the Code of Civil Procedure was maintained in the year 2016. The amendment, as sought is after a long time. The question, which is involved in the present case is totally different and the same cannot be allowed at this stage. In the present case, the applicant-petitioner has moved the instant application for amendment of the plaint averring therein that the defendants during the pendency of suit on 18.11.2011 have forcibly erected poles and laid electric wires over the suit land. From the perusal of record which shows that the present suit has been maintained on 19.10.2011, at that time, defendants have started digging the pit for installation of electric poles and are threatening to install the same over the suit land. At that time, the averments of the plaintiff has been contested by defendants No.4 to 8 by filing written statement on 27.12.2011 by alleging that the electric poles were already erected in the month of May, 2011 i.e. on the road side near the boundary of the land of the plaintiff. In replication, the plaintiff in para-2 has also specifically admitted that the electric poles over the suit land have been installed after passing stay order. Now, the plaintiff has moved, an application under Order 6 Rule 17 of the Code of Civil Procedure, after more than five years averring that during the pendency of suit, defendants have encroached upon the suit land by way of erecting poles in the year 2011, when the case was fixed for defendants evidence. Now, the plaintiff has moved, an application under Order 6 Rule 17 of the Code of Civil Procedure, after more than five years averring that during the pendency of suit, defendants have encroached upon the suit land by way of erecting poles in the year 2011, when the case was fixed for defendants evidence. If it is presumed that the electric poles were erected after institution of the suit land on 18.11.2011, what prevented the plaintiff from moving an application for amendment of the plaint, has not been mentioned by the applicant in his pleadings. It is settled law that the provisions of Order 6 Rule 17 have to be applied more liberally qua the written statement viz-a-viz plaint. However, in the instant case, it was always open to the plaintiff to file the present application at earlier stage. The plaintiff has waited for almost five years to move an application for the amendment, when the suit was fixed for defendants evidence whereas from the perusal of record, it is clear that in the year 2011, the plaintiff was in the knowledge of the aforesaid facts, which, he now wants to insert by way of amendment and now at this belated stage, it cannot be allowed, as the plaintiff kept on sleeping over the matter for five years and further the amendment is otherwise also not necessitated for the proper adjudication of the case. So, this Court finds that in these circumstances, there is no illegality and infirmity in the impugned order, dated 4.6.2018, passed by the learned Court below. 14. In view of what has been stated hereinabove, the present petition sans merits, deserves dismissal and is accordingly dismissed. Parties through their learned counsel are directed to appear before the learned Court below on 24th September, 2019. No order as to costs. Pending application(s), if any, also stand (s) disposed of.