Autar Singh Rana vs Arvind Mohan Saklani and others

Hon''ble Tarun Agarwala, J.—Heard Mr. N.S. Pundir, the learned counsel for the petitioner and Mr. N.S. Negi, the learned counsel for respondent Nos. 1 and 2.

The petitioner is the plaintiff and has filed a suit against the defendants for prohibitory mandatory injunction contending that the defendants are encroaching upon his property and are trying to make construction on the passage namely, the 4 Ft. wide lane shown in the plaint map by the letters Ba, Ka, Sa, Da, Kha. An injunction order to this effect was also granted by the trial court.

During the pendency of the suit, the plaintiff filed an application under Order 6 Rule 17 of the C.P.C. for amendment of his plaint alleging that inspite of the injunction, the defendants have made some construction adjacent to the passage in question. The plaintiff contended that the construction so raised in the land of the defendants, violated the sanctioned plan of the defendants, as they have raised construction on a setback which was not permissible. This amendment application was allowed against which the defendants preferred a revision, which was allowed by the impugned order. The plaintiff, being aggrieved, has filed the present writ petition contending that the revisional order was patently illegal which was liable to be quashed and that the amendment application was liable to be allowed.

Having heard the learned counsel for the parties and having perused the impugned order, the Court finds that the trial court did not apply its mind to the facts and the amendment sought by the plaintiff. The dispute in the suit relates to the passage Ba, Ka, Kha, Da, Sa, namely, the 4 Ft. wide passage left by the plaintiff on his land, which was alleged to be encroached by the defendants. By the amendment application, the plaintiff sought to amend the plaint and incorporate a fact to the effect that the defendants have raised constructions on his own land which is adjoining to the passage in dispute and that such construction is against the sanctioned map granted to the defendants. Such construction, so raised by the defendants, in their own land is not the subject matter of dispute and consequently, such averments are totally irrelevant for the purpose of adjudication of the suit. Such amendment cannot be allowed and the revisional court was justified in allowing the revision and setting aside the order of the trial court. This Court does not find any error in the impugned order.

The writ petition fails and is dismissed, accordingly.

Certified copy of this order shall be sent by the Registry to the court below within two weeks from today for necessary information and action.