CR No v. Piara Singh

Smt. Manso and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.P.K.Gupta, Advocate for the petitioner. -- Sabina, J. (oral) This revision petition filed under Article 227 of the Constitution of India is for setting aside the order dated 5.8.2009 passed by the Additional Civil Judge (Senior Division), Garhshankar (Anneuxre P5) and to allow the application under Order 6 Rule 17 of the Code of Civil Procedure read with Section 151 of the said Code (Annexure P3). Plaintiffs Manso and Surjit Singh had filed a suit for permanent injunction restraining the defendant from demolishing by ploughing the passage marked as `ABCD' shown red in colour in the attached site plan, which is part of Khasra nos. 2635/1020 etc as per jamabandi 1996-97 situated in the area of village Rurki Khas, Tehsil CR No,5861 of 2009 (O&M) 2 Garhshankar illegally and forcibly till the regular partition of the joint land is made and also restrained the defendant from ploughing the taur of joint well marked as EFGH shown yellow in colour in the site plan, which is part of khasra No.2635/1020 situated in the area of village Rurki Khas Tehsil Garhshankar and from causing any sort of obstruction in the user of the said taur and joint well and from causing any loss to the parshian wheel installed in the common well and from causing any kind of obstruction in the irrigation of their land by cutting and removing the toot and dek trees standing in the joint taur of the well.

Notice of the suit was issued to the defendant. When the case was listed for defendant's evidence, an application under Order 6 Rule 17 of the Code of Civil Procedure Code was filed by the defendant seeking permission to amend the written statement. Vide the impugned order, dated 5.8.2009, the said application was dismissed. Hence, the present revision petition. After hearing the learned counsel for the petitioner, I am of the opinion that the instant appeal is devoid of any merit. By way of amendment, the defendant wanted to take up the plea that the plaintiffs had carved out a colony in the part of the suit property which was in their separate possession. Some plots had been sold to Gurdev, Harnam etc. where residential houses have been constructed over the plot in her possession in the year 2006. The suit was filed by the plaintiffs in the year 2001 and the issues were framed in January,2002.

Plaintiffs completed their evidence on April 21,2007 and thereafter, the case was adjourned for defendant's evidence. A perusal of the impugned order dated 5.9.2008 reveals that till date, defendant had failed to examine any witness. The plaintiffs in reply to CR No,5861 of 2009 (O&M) 3 the application under Order 6 Rule 17 of the Code of Civil Procedure had denied that any colony has been carved out in the suit property. The case of the plaintiffs is that they were using passage in dispute for approach to their land as well as taur of well. Partition proceedings between the parties have not been finally decided so far as the appeal is pending before the Financial Commissioner, Revenue Punjab Chandigarh. Moreover, the dispute between the passage is with regard to the existence of the passage `ABCD' and the plaintiffs have sought permanent injunction till the regular partition of the joint land is made.

In these circumstances, the learned trial Court rightly held that the amendment sought by the plaintiffs had not bearing on the controversy involved in the case. The application had been filed just to delay the proceedings. The impugned order does not suffer from any material illegality or irregularity which may warrant interference in exercise of revisional jurisdiction under Article 227 of the Constitution of India. Dismissed ( Sabina ) Judge October 13, 2009