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2019 DIGILAW 1656 (HP)

Pinku Ram v. Manmohan

2019-11-06

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present petition, under Article 227 of the Constitution of India, has been maintained by the petitioners, who were the defendants before the learned trial Court (hereinafter to be called as "the defendants") against the order dated 12.03.2019, passed by learned Civil Judge (Sr. Div.) Court No. 1, Rohru, District Shimla, H.P. in CMA No. 286/6 of 2018, in Civil Suit No. 36-1 of 2018, whereby the application filed by the plaintiff/respondent (hereinafter to be called as "the plaintiff") seeking amendments in the plaint was allowed. 2. Briefly stating the facts, giving rise to the present petition are that the plaintiff filed a suit against the defendants for permanent prohibitory injunction restraining them from encroaching upon, dispossessing the plaintiff or interfering in the land bearing Khata/ Khatauni No. 195 min/434 min, Khasra No. 1859/1493, area measuring 00-01- 31, situated at Chak Chirgaon, Tehsil Chirgaon, District Shimla, H.P. During the pendency of the suit the plaintiff filed an application under Order 6, Rule 17 of the Code of Civil Procedure seeking amendment in the plaint, wherein it has been alleged that since the defendants had tried to encroach upon the suit land by unlawful means and forcibly occupied a portion of it, the amendments in the plaint by incorporating necessary facts statedly to have consequential amendment to the prayer clause by way of seeking relief of mandatory injunction also, are required to be made. 3. The application filed by the plaintiff was contested by the defendants by filing reply, wherein dismissal of the application has been prayed and it is denied that the defendants have unlawfully occupied a portion of the suit land and it is averred that suit for the relief of mandatory injunction is not maintainable. 4. Learned counsel for the petitioners has argued that the learned Court below has legally erred in law while passing the impugned order and further by granting permission to the respondent to amend the plaint, so the present petition may be allowed and the impugned order dated 12.03.2019 may be set aside. 5. On the other hand, learned counsel for the respondent has argued that the impugned order passed by learned Court below suffers from no illegality and the present petition may be dismissed. 6. To appreciate the arguments of learned counsel for the parties, I have gone through the entire record in detail. 7. 5. On the other hand, learned counsel for the respondent has argued that the impugned order passed by learned Court below suffers from no illegality and the present petition may be dismissed. 6. To appreciate the arguments of learned counsel for the parties, I have gone through the entire record in detail. 7. From the record it is clear that on 03.05.2018 the plaintiff filed a suit for permanent injunction against the defendants qua the suit land claimed to be exclusively owned and possessed by him alleging unlawful interference therein by the defendants and the respondents had filed written statement on 05.06.2018. Thereafter, the case was listed on 24.09.2018, on which date, the application under Order 6, Rule 17 of the Code of Civil Procedure has been filed. Meaning thereby, that the trial has not started by that time and the applicant by way of amendment in the plaint was seeking addition to relief on facts taken place during the pendency of the suit. Secondly, as per the plaintiff the possession was taken over during the pendency of the suit, so the amendment is required to be allowed to meet the ends of justice, since the new developments has taken place during the pendency of the suit. 8. In view of the above stated facts, this Court finds that as the application was moved at the earliest possible and the same was in continuation to the proceedings already maintained and since the trial has not yet commenced, the impugned order suffers from no illegality and the same has been passed in accordance with law. Accordingly, the present petition, which is devoid of merits, deserves dismissal and is dismissed. Pending applications, if any, also stands dismissed. Parties to appear before the learned Court below on 27.11.2019.