Madal Lal Sharma vs Pritam Singh and others.

Order dated 4.8.2016 passed by learned Civil Judge (Junior Division)-I, Dharamshala, District Kangra, in an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure registered as CMA No. 199 of 2013, is under challenge before this Court in the present petition. It is seen that learned trial Court while taking note of the provisions contained under Order 6 Rule 17 CPC and also the factum of the issue regarding mandatory injunction is already framed in the main suit, has dismissed the application.

The prayer for amendment in the plaint was sought to be made on the grounds inter alia that the respondents-defendants in violation of the interim order passed by learned trial Court has started raising construction over the suit land comprised in Khewat Khatauni No. 238/341 to 342, Khasra No. 203, 204 and 205, land comprised in Khewat Khatauni No. 110/168, Khasra No. 199 and land comprised in Khewat Khatauni No. 136/210, Khasra No. 202 situated in Mauja Sham Nagar/364/1 Tehsil Dharamshala, District Kangra on and w.e.f. 16.08.2015 and also blocked the existing drain with concrete, sand and cement mixture on 18/20.08.2015. Therefore, in relief clause, sub-para 2(i)(a), which reads as follows, was sought to be added by way of amendment: "That in case it is found and proved that during the pendency of the suit the defendant No.1 has changed the nature of and raised any construction on the open drain of the defendant No.1 on suit land (b), in that event the defendant No.1 may kindly be directed by way of mandatory injunction to demolish such construction and to restore the open drain to its original position."

The application was resisted and contested on behalf of the defendants as pointed out at the out set. Learned trial Judge after taking note of the provisions contained under Order 6 Rule 17 CPC has concluded that the trial stands commenced and as no case is made out for allowing amendment in the plaint as well as an issue regarding entitlement of the petitioner-plaintiff to the decree of mandatory injunction is already framed in the main suit, has dismissed the application.

True it is that amendment in the pleadings can be permitted at any stage of proceedings, of course, the party seeking the same satisfies the Court ceased of the matter that he/she was prevented by sufficient cause from bringing the facts to be incorporated by way of amendment after having exercised due diligence. The facts on which amendment in the plaint is being sought no doubt if taken as it is have surfaced during the pendency of the suit, however, had the respondents-defendants started raising construction in violation of the interim order passed by learned trial Court, the remedy available to the petitioner-plaintiff would have to initiate contempt proceedings against them by filing an application under Order 39 Rule 2-A CPC and not an application seeking amendment under Order 6 Rule 17 CPC. Otherwise also, when the issue regarding the entitlement of the petitionerplaintiff to the decree for mandatory injunction is already framed, therefore, the said issue is sufficient to take care of this part of the controversy between the parties. I, therefore, find no illegality or infirmity, serious in nature, in the impugned order, warranting this Court to exercise its revisional jurisdiction, which otherwise is limited one and should be exercised sparingly and in appropriate cases of serious miscarriage of justice caused to the aggrieved party. The petition is accordingly dismissed. The liberty, however, is reserved to the petitioner-plaintiff to file application under Order 39 Rule 2-A CPC, if so advised. Pending application(s), if any, shall also stand disposed of. June 15, 2017 (Dharam Chand Chaudhary) (naveen) Judge List of the documents returned to witness Sh. Ashwani Kumar (PW-1), summoned in Election Petition No. 2 of 2013 1. Two Registers of postal ballot papers

Valid declaration form envelop.

Declaration form envelop.

17-C envelop.

Rejected ballot papers envelop.

Form-12 envelop.