Chhotey Singh vs Rajinder Singh Malik

Indermeet Kaur, J.

CM No. 5511/2010

In view of the averments contained in the instant application, the petition is restored to its original position.

Application disposed of.

CM(M) No. 760/2007 & CM Nos.5512/2010 & 6735/2011

The petitioner is aggrieved by the impugned order dated 23.03.2007 vide which his application seeking an amendment of the plaintiff under Order 6 Rule 17 of the CPC (hereinafter referred to as the ''Code'') had been declined. Record shows that the present suit has been filed by the petitioner Chhotey Singh against the respondent for mandatory injunction and damages to the tune of Rs. 8,50,000/-. This suit was filed in the year 2000. Contention of the plaintiff is that he is the owner and in possession of the property bearing No. 39, Village Masoodpur, Post Office, Vasant Kunj, New Delhi which is a single storey structure; there is only store room on the roof; rest of the portion is lying open; the house of the defendant is adjacent to the house of the petitioner towards eastern side which is only being constructed up to ground floor level; in 1999, the respondent demolished the structure of his house and reconstructed the same up to four storeys; during the course of this reconstruction, the defendant had damaged certain portion of the house of the plaintiff/petitioner i.e. big cracks into room and one bathroom of the petitioner; the defendant had in fact raised a 4" wall adjacent to the house of the petitioner; the first, second and terrace floors have also been raised which are towards the side of the house of the petitioner as a result of which there has been damage. Accordingly suit claiming the aforenoted prayers had been filed. In may, 2006, the petitioner had noticed big gaps which have developed on the wall of his house and which are adjacent to the house of the respondent. These glaring gaps require the petitioner to incur heavy expenditure for their repair; the reconstruction which require place a heavy financial burden upon the petitioner; accordingly the present application seeking enhancement of damages from Rs. 8.50 lacs to Rs. 13.5 lacs has been prayed for.

The submissions made in the application under Order 6 Rule 17 of the Code have been perused. Contention is that because of the huge gaps which were noted by the plaintiff in his wall which is adjacent to the wall of the defendant and which cracks have developed and deeper and larger in size because of the construction activities of the defendant; an Architect had been engaged to inspect the premises of the plaintiff who had found that the wall of the plaintiff was in dangerous and inhabitable condition because of the construction raised by the defendant; Wall ''A'', ''B'', ''C'' and ''D'' (depicted in the site plan) show that the heavy expenditure have to be incurred by the plaintiff to reconstruct these damaged walls; accordingly the present application seeking enhancement of claim to Rs. 13.5 lacs had been filed.

Reply has been filed opposing the application.

The purport of provisions contained in under Order 6 Rule 17 of the Code is that if the controversy in dispute will be enlightened by the proposed amendment and no prejudice is suffered by the non-applicant, coupled with the fact that the application has been filed bonafide, the Court may grant such a prayer. In the instant case, the petitioner has already filed a suit for mandatory injunction and damages to the tune of Rs. 8.50 lacs which was pursuant to the inspection report of a qualified Architect carried out on 15.07.2006 (copy of which has been placed on record). He submission of the respondent that order dated 15.7.2005 had declined the same prayer is a wrong submission; vide order dated 15.7.2005 the prayer of the petitioner the petitioner to summon a witness whose name did not find mentioned in the original list of witnesses was declined. No prejudice would also be suffered by the petitioner; the prayer now sought for is only in tune with the already made prayer; it is only the amount which is sought to be enhanced and this is in view of the glaring gaps noted by the plaintiff in his wall which as per the inspection report will cause a heavy financial burden upon the petitioner for the purpose of its repairs. The impugned order disallowing the prayer is set aside. The amended plaint is taken on record. Needless to state that the report of the Architect relied upon by the petitioner will have to be proved in accordance with law. Order is passed subject to payment of Rs. 20,000/- as costs. Petition disposed of.