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Judgment
Dr. A.K.Rath, J
This petition challenges the order dated 18.1.2018, passed by the learned Civil Judge (Junior Division), Bhubaneswar, in C.S. No.438 of 2012,
whereby and whereunder, learned trial court allowed the application for amendment of the plaint.
Plaintiffs-opposite party nos.1 to 4 instituted the suit for permanent injunction impleading the petitioner and opposite party nos.5 and 6 as defendants.
The defendant no.1 filed written statement denying the assertion made in the plaint. While the matter stood thus, petitioner filed application for
amendment of the plaint. The same has been allowed on 18.1.2018.
On a cursory perusal of the petition, it is evident that except copy of the petition, neither copy of plaint, nor written statement has been annexed to
the petition. The same are very essential for effectual adjudication of lis.
In Bharat Singh and others Vs. State of Haryana and others, AIR 1988 SC 2181, the apex Court in no uncertain terms held :
“13. xx xx xx. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ
petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts
are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain
the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a
writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition
or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised
before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit.â€
In view of the same, the Court is not inclined to entertain the petition. At this juncture, learned counsel for the petitioner wants to withdraw the
petition to file better application. Liberty is granted to the petitioner to file fresh application with better particulars. The petition is disposed of as
withdrawn.
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