Prem Singh Through his LR Parsino Devi vs Kuldeep Singh

Chander Bhusan Barowalia, J .

The present petition, under Article 227 of the Constitution of India, has been maintained by the petitioner, against the order dated 10.10.2017, passed

by learned Senior Civil Judge, Court No. 1, Hamirpur, in Civil Suit No. 92 of 2005, with a prayer to quash and set aside the same, being illegal and

wrong and petitioner/defendant (hereinafter to be called as “the defendantâ€) may be permitted to file amended written statement to the amended

plaint.

Briefly stating facts giving rise to the present petition are that the respondent/plaintiff (hereinafter to be called as “the plaintiffâ€) filed a suit

under Order 7, Rule 1 and Sections 9, 26 of CPC and Sections 34, 38 and 39 of the Specific Relief Act for demarcation with consequential relief of

permanent prohibitory injunction, on the ground that he is owner in possession of the land comprised in Khata No. 58, Khatauni No. 213, Khasra No.

1046/292, area 333.75 square meter and the defendant has no right to raise any kind of construction, destroy the boundary and to cause any

obstruction in getting the boundary redefined.

The defendant, in written statement specifically submitted that the plaintiff has no cause of action to file the present suit. It has been alleged that the

plaintiff has suppressed the material facts from the Court, as the land was jointly purchased by both the parties, but the same was partitioned before

raising construction by the defendant. The defendant has raised construction in accordance with the site plan approved by the competent authority and

even proper set backs has been left and the suit land is covered by a boundary wall. It has been denied by the defendant that plaintiff has ever used

any path over his land. Lastly, it has been prayed by the defendant that as he has raised construction within the four walls of the boundary, there is no

question of re-defining the boundary, as the same are fixed at the time of partition/settlement and the suit deserves dismissal.

Learned trial Court, vide judgment dated 25.03.2013, decreed the suit of the plaintiff. Feeling dissatisfied, the defendant preferred an appeal before

the learned first Appellate Court, which was allowed and the judgment and decree passed by the learned trial Court has been set aside/remanded, with

a direction to record findings on all the issues afresh and the parties were directed to appear before the learned trial Court on 10.10.2017. However,

on the said date, learned counsel for the defendant sought an opportunity to file amended written statement to the amended plaint, but the prayer made

by the learned counsel for the defendant has been declined and the case was fixed for hearing/arguments on 14.12.2017. Hence the present petition.

I have heard the learned counsel for the parties and have gone through the record carefully.

Learned counsel for the petitioner has argued that the learned trial Court has committed grave illegality in not allowing the defendant to file

amended written statement when the plaint was amended and thus, the impugned order deserves to be set aside. On the other hand, learned counsel

for the respondent has argued that the defendant never made a prayer to file amended written statement and so the learned trial Court has not

committed any illegality while passing the order.

To appreciate the arguments of learned counsel for the parties, this Court has gone through the record in detail.

The learned trial Court while dismissing the prayer of the defendant in not allowing him to file amended written statement to the amended plaint has

only taken the view that since the appeal has been remanded for disposing of the matter afresh and there is no order to allow the defendant to file

amended written statement to the amended plaint, so it cannot be granted. However, this was not the correct view, when the Court has allowed the

party to amend the plaint, the defendant has right to file amended written statement to the amended plaint, as otherwise it would prejudice the right of

the defendant, which would not be in the interest of justice.

Accordingly, the present petition is allowed and impugned order is set aside and learned trial Court is directed to grant two weeks’ time to the

petitioner-defendant to file amended written statement to the amended plaint and thereafter dispose of the matter in accordance with law. However, in

case the amended written statement is not filed within the aforesaid period, the right of the petitioner-defendant to file the same will automatically

stands closed and the learned trial Court will proceed with the matter on the basis of written statement already on record. No order as to costs.

Parties are directed to appear before the learned trial Court on 10th September, 2018.

The petition, so also pending miscellaneous application(s), if any, stands disposed of accordingly.