Alajangi Yellaiah v. Dogga Rajani Kumari

THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION NO.2612 OF 2008 AND CIVIL MISCELLANEOUS APPEAL NO.70 OF 2008 COMMON ORDER: The Civil Revision Petition No.2612 of 2008, under Article 227 of the Constitution of India, is directed against the order and decree, dated 30.07.2007, in I.A.No.565 of 2005 in A.S.No.22 of 2004 on the file of Senior Civil Judge, Parvatipuram, whereunder and whereby, the application filed under Order VI Rule 17 read with Rule 28 of the Code of Civil Procedure, 1908 (for short “C.P.C.”) for amendment of plaint in O.S.No.56 of 1999 on the file of Principal Junior Civil Judge, Parvatipuram, was allowed. The Civil Miscellaneous Appeal No.70 of 2008, under Order 43 Rule 1 (U) C.P.C., is directed against the judgment and decree dated

30.07.2007 in A.S.No.22 of 2004 on the file of Senior Civil Judge Judge, Parvatipuram, which was filed against the judgment and decree dated 16.02.2004 in O.S.56 of 1999, whereunder and whereby the matter was remanded to the trial court with a direction to dispose of the suit after amending the plaint and after giving opportunity to both the parties.

Heard both sides.

Learned counsel for the respondent contended that O.S.No.56 of 1999 on the file of Principal Junior Civil Judge, Parvatipuram, was filed for mandatory injunction directing the petitioner herein to close the gaps, which were kept open for installing windows to the southern wall of the upstairs of the respondent building. Pending the suit, the respondent I.A.No.263 of 1999, temporary injunction restraining the petitioner from inserting window frames in the gaps. After hearing both the parties, the learned Principal Junior Civil Judge, passed orders of status quo to be maintained pending disposal of the suit.

After passing of the status-quo orders, the petitioner said to have violated the orders and inserted window frames with grills and sunshades over the said windows projecting into the plaint schedule lane. No doubt, the petitioner ought to have taken steps before the trial Court to amend the plaint, when the suit was pending. Though there are some laches on the part of the petitioner in not filing the said application at the earliest point of time, but, in view of the fact that the suit is of the year 1999, the principles governing the amendment of pleadings prior to amendment should be liberally allowed. Though there is no dispute about laying of sunshades over the windows during the pendency of suit, which were projected into the plaint schedule lane, that issue has to be decided by the trial Court as to whether the defendant has any right to lay the sunshades over the windows projecting into the lane as claimed by him. Therefore, the appellate Court has rightly taken note of the fact that the sunshade was laid subsequent to the filing of the suit and the same is not in dispute. But remanding the matter to the trial Court for adducing the evidence is unsustainable, in view of the fact that there is no dispute about laying of sunshades over the windows. Hence, the question of letting any evidence may not arise.

Accordingly, the Civil Revision Petition is dismissed and the Civil Miscellaneous Appeal is allowed, by setting aside the impugned judgment and decree dated 30.07.2007 in A.S.No.22 of 2004 on the file of Senior Civil Judge Judge, Parvatipuram. The appellate Court shall dispose of the appeal after giving opportunity to both parties to let in evidence in pursuance of amendment of pleadings. This direction is given considering the fact that the suit is of the year 1999. There shall be no order as to costs. _______________ K.C.BHANU. J NOVEMBER 09, 2010. YVL