Sone Lal and 2 others vs Shree Krishna and another

Ram Surat Ram (Maurya), J.—Heard Sri Manish Goyal for the petitioners and Sri Siddhartha Varma for the opposite parties.

This petition has been filed for setting aside the order of Additional District Judge dated 16.11.2015, by which the application for amendment of the plaint has been dismissed on the ground that the proposed amendment is sought to be added in the plaint after more than 12 years of the cause of action, therefore, the relief has become time barred.

The petitioners filed a suit (registered as O.S. No. 439/1989) for permanent injunction restraining the defendants from holding Ram Leela over plot no. 3377/1 (area 6012 acre), village and post Talgram, tahsil Chhibramau, district Farrukhabad. The right of easement has been claimed by the petitioners, alleging that for more than 40 years, the villagers used to hold Ram Leela procession over the land in dispute and for that purpose, they have also raised some constructions, like chabutra, etc. It is alleged that the trial court has issued Amin for spot inspection, in which some of the constructions were found on the spot. The trial court has also granted interim injunction in the matter on 16.11.1992.

Thereafter, the plaintiffs moved an application on 28.1.1997, alleging therein that the defendants had demolished some of the constructions for holding Ram Leela procession on 19.9.1996. Therefore, a prayer was made that defendants-3 and 4 be restrained from interfering with the plaintiffs in establishing same construction over the disputed land for holding Ram Leela procession. The application dated 28.1.1997 was directed to be heard along with the suit at the time of final hearing by order dated 2.2.2000. However, the trial court has not passed any order in the application and by judgment dated 7.4.2010, dismissed the suit of the plaintiffs, holding that the plaintiffs could not establish their easementary right over the land in dispute. The petitioners filed an appeal, i.e. Civil Appeal No. 22/2010 from the aforesaid decree of the trial court on 12.4.2010. During pendency of this appeal, the application for amendment of the plaint was filed on 7.10.2010. Initially, the appellate court by the order dated 16.5.2015 held that the application would be decided at the time of hearing of the appeal and if it is found that the petitioners established their right of easement over the disputed land, then the amendment would be allowed. However, under the direction of this court, amendment application was heard on merit and it was dismissed on the ground that the relief has become time barred from accrual of cause of action.

I have considered the arguments of counsel for the parties and examined the record. The purpose of the petitioners would be served in case the appellate court permits the petitioners to raise a ground that their application dated 28.1.1997 be also decided as the trial court has not decided it.

Accordingly, the petition is disposed of directing the lower appellate court to permit the petitioners to raise a ground in respect of their application dated 28.1.1997 under Order 41, Rule 2 CPC. In case such a ground is raised by the petitioners within one month, then it shall be considered at the time of hearing of the appeal on merit.