Rajesh Jain vs. Bina Aasati

W.P.No.7201/2012

Rajesh Jain & Ors. Vs. Smt. Bina Asati & Ors.

12/02/2014

Shri P.C.Paliwal, learned counsel for the petitioners.

Shri Umesh Trivedi, learned counsel for Respondent Nos.1 to 3.

Challenging the interlocutory order dated 23.4.2012 passed by the learned 5th Civil Judge Class-II Balaghat in Civil Suit No.18-A/2010 disallowing an application filed by the plaintiff/petitioner under Order 6 Rule 17 CPC, this writ petition has been filed.

Petitioner is a plaintiff and has filed the suit in question for declaration and injunction with regard to the suit property, as is detailed in Paragraph-5.2 of the writ petition. After the suit was filed and at the stage of framing all issues, the petitioner/plaintiff filed an application for amendment and made a plea for restoration of possession and also made an complaint with regard to demolition of certain portion by the respondents and interference with the possession in the matter.

The said application has been rejected only on the ground that the petitioner has not given any reason as to why, the application could not be filed early.

Having heard learned counsel for the parties and on perusal of the records, it is seen that the dispute between the parties pertains to possession and certain act with regard to the property in question and even if the amendment is allowed, it does not materially change the nature of the suit and as all the dispute existing between the parties can be adjudicated in the said suit, merely because the application

W.P.No.7201/2012

Rajesh Jain & Ors. Vs. Smt. Bina Asati & Ors.

was not filed early and no reason is given, as to why, he did not file the application on time, dismissal of the application for amendment on the mechanical ground is not proper.

To avoid multiplicity of the suit, interest of justice requires that the aforesaid application should have been allowed. The delay caused to the respondents can be compensated on payment of some cost to the respondents.

That being so, the petition is allowed. The order impugned dated 23.4.2012, rejecting the prayer made by the petitioner for allowing amendment, is quashed. Amendment as proposed vide Annexure-P6, an application under Order 6 Rule 17 CPC is allowed. Amendment is permitted to be incorporated.

However, allowing the amendment shall be subject to petitioner's paying a further cost of `1,000/- (Rupees One Thousand Only) to the respondent.

The learned Court below is directed to expedite the finalization of the suit.

(Rajendra Menon) Judge

nd