Lekhraj vs Kailashi and Others

Narendra Kumar Jain, J.—At request of the parties, final arguments were heard and writ petition is being disposed of.

The plaintiff-petitioner filed a suit for injunction in respect of property in dispute praying therein that the defendants may be restrained not to evict the plaintiff-petitioner therefrom without following due process of law; it was alleged that during the pendency of the suit the defendants have forcefully evicted the plaintiff-petitioner from the property in dispute; therefore, he moved an application for amendment in the suit under Order 6 Rule 17 read with Order 1 Rule 10 CPC, which has been dismissed by the trial Court vide order dt. 23.01.2008; being aggrieved with the same, the present writ petition has been preferred.

Learned Counsel for petitioner contended that the suit for injunction was filed on 12.12.2005 wherein interim injunction order was passed on 15.12.2005 but still the plaintiff-petitioner was dispossessed on 28.01.2006; therefore, he moved an application for amendment in the plaint seeking relief for restoration of possession, which has wrongly been dismissed by the trial Court, therefore, the impugned order be set-aside and the application be allowed.

Learned Counsel for defendant-respondents opposed the writ petition and contended that the defendants filed written-statement in the trial Court on 02.02.2006, wherein they pleaded that plaintiff was dispossessed in October, 2005 and not on 28.01.2006; the application for amendment in the plaint was filed on 06.03.2006 and not immediately; and further that no F.I.R. was lodged about his dispossession, therefore, the amendment sought does not appear to be bona-fide and the trial Court was right in rejecting the application.

I have considered the submissions of the learned Counsel for the parties and examined the impugned order dt. 23.01.2008.

The petitioner was tenant in the disputed property; he filed a suit for permanent injunction wherein the interim injunction was passed and, as per the allegations in the application under Order 6 Rule 17 CPC filed on 06.03.2006, he was dispossessed despite interim injunction granted by the trial Court; however, this fact has been denied by the defendants contending that the plaintiff himself handed over the possession much before filing of the suit itself. It appears that initially the suit was filed for permanent injunction. In case the plaintiff would have been dispossessed or handed over the possession in October, 2005 itself, then there was no reason for him for not filing suit for possession or restoration of the possession of the rented property in December, 2005, when the present suit was filed. The defendants will have a right to take all pleas in the written-statement including the plea regarding jurisdiction and the Court-fee in the facts and circumstances of the present case. The provisions relating to amendment in the pleadings are procedural in nature and required to be construed liberally. Therefore, I am of the view that the trial Court committed an illegality in exercise of its jurisdiction and in rejecting the application of the plaintiff and that the same is liable to be allowed.

Consequently, the writ petition is allowed. The impugned order dt. 23.01.2008 passed by the Additional Civil Judge(Senior Division), Dholpur, in Case No. 68/2007 is set-aside; the application filed by the petitioner under Order 6 Rule 17 read with Order 1 Rule 10 CPC is allowed. The amended plaint may be filed within a period of four weeks from today in case the same has not been filed as yet.

The parties are directed to bear their own costs.