Suresh Kumar v. Jagdish Singh & Ors.

Mr. G.P.Singh, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. This revision petition is directed against the order dated

16.02.2005 passed by the learned Additional Civil Judge (Senior Division), Gurgaon by which an application filed by the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure, 1908 [for short “CPC”], has been dismissed. The plaintiff had filed a suit for permanent injunction in order to restrain the defendants from encroaching upon the common passage. It was also prayed that in case the defendants succeed in their mischief, a decree for mandatory injunction be issued. When the case was at its initial stage, the plaintiff had filed an application on 24.02.2003 under Order 6 Rule 17of the CPC in order to amend para Nos.1 and 2 and also to make some minor amendments in para Nos.5 to 9 of the plaint. The proposed amendment is reproduced as under: - “1. That the plaintiff is owner in possession of the residential house shown in green colour in the site plan consisting four rooms, two verandah, stair case, kitchen, latrine, bathroom, CR No.2958 of 2005 -2- ***** septic tank, old four walls, open chowk and main gate and open portion, situated in the abadi of village Ghosgarh, Sub Tehsil Farruknagar, Tehsil and District Gurgaon. The defendant Nos.1 and 2 are also owners in possession of the old Haveli shown in blue colour in the site plan adjacent to the property of the plaintiff.

That the portions shown in red and black colour in the site plan and marked by letters A B N D and B E F G H I J K L M in the site plan are common passages/portions and common chabutra of the plaintiff and defendants No.1 and 2 and the windows, doors, ventilator etc. of the plaintiff and defendants are opens towards the said both common passages and common portions and the said common portions are in use and occupation of the parties and said portions are bounded as under: - A) The common passage shown in red colour and by letter A B N D in the site plan is bounded as under: - East : Verandah of plaintiff and Old Haveli of defendants No.1 and 2. West : House of the plaintiff and then Rasta Aam. North : Common passage and common chabutra shown in black colour and then house of Jagmal. South : Open portion of plaintiff and then house of Hoshiyar etc. B) The common passage shown in black CR No.2958 of 2005 -3- ***** colour and by letters B E F G H I J K L M in the site plan is bounded as under: - East : Room and Verandah of the plaintiff and then old Haveli of the defendants No.1 and 2. West : Rasta Aam. North : Latrine, bathroom, septic tank and open portion of plaintiff and then house of Jagmal. South : House of plaintiff and common passage, common portions shown in red colour. The plaintiff also seeks amendment in paras No.3, 5 and 9 of the plaint by inserting the words common Chabutra and letters A. B N D and B E F G H I J K L M and C D N O accordance with amended new site plan as prepared on 20.02.2003 at this site.” The learned Trial Court, however, by way of the impugned order dismissed the said application on the ground that the plaintiff wanted to withdraw the admissions in the plaint, which would cause irreparable loss to the defendants. In the present revision petition, notice of motion was issued on 26.05.2005. At that time, the following order was recorded by this Court: -

Learned counsel for the petitioner has argued that amendment has been sought at the initial stage before framing of issues. According to the learned counsel, the trial in terms of Order 6 Rule 17 CPC has not yet commenced. Notice of motion for 17.11.2005. CR No.2958 of 2005 -4- ***** Notice regarding stay. Till further orders, proceedings shall remain stayed.

After service, the present revision petition was admitted on

27.11.2006 with the following order: - “Admitted. Interim order to continue.” Opening his arguments, learned counsel for the petitioner has drawn the attention of this Court to the site plans (Annexures P-4 & P-5). He submits that area shown in green colour belongs to the petitioner for which he has sought injunction, but since there was some error in the site plan, a fresh site plan was submitted in which area shown towards north, which was earlier mentioned as “V E R”, is now shown as open portion of the plaintiff and towards East in the earlier site plan only one room of the plaintiff was shown, whereas in the subsequent site plan another property of the plaintiff, namely “V E R”, has also been shown. It is submitted that this is the only amendment which is sought which has been declined by the learned Trial Court. It is also submitted that since it is a suit for permanent injunction, the averments made earlier in the plaint would not constitute admission of the plaintiff as he wanted to sue regarding left out portion shown in the subsequent site plan which is also being threatened to be interfered by the defendants.

He also submits that the suit is at the initial stage, therefore, the learned Trial Court has committed a patent error in dismissing the application. In reply, learned counsel for the respondents has repeated the observation of the learned Trial Court which is in their favour but he has very candidly admitted that the suit is at the initial stage. After hearing learned counsel for the parties, I am of the view that the impugned order is patently illegal and is liable to be set aside because in a suit for injunction, the plaintiff has a right to seek a restraint order from the Court against the person/defendant who is threatening to interfere in his possession and if some area is left out initially, which he CR No.2958 of 2005 -5- ***** also seeks to be protect from the invasion of the defendant, the plaintiff can always amend his suit specially in a case like the one in hand where it is at its initial stages and there is no question of withdrawal of any admission as observed by the learned Trial Court.