Dismissed

Brij Mohan Lal Deceased and 5 Ors. v. Smt. Chandra Kanta

Allahabad HC9 Jan 2019A227/4871/2016

Case brief

AI extract

What is this about?

In a writ petition under Article 227, a High Court bench dismissed a plea that an amendment application for a mandatory injunction regarding staircase obstruction was time barred. The court held the amendment was not time barred as it related to existing interlocutory steps and left factual disputes for trial.

What did the court decide?

The petition under Article 227 was dismissed as it was devoid of merits; no interference with the lower court's order allowing the amendment.

Brij Mohan Lal Deceased and 5 Ors. Vs Smt. Chandra Kanta — Property and Title | Allahabad HC (2019)

¶1

Court No. - 36

¶2

Case :- MATTERS UNDER ARTICLE 227 No. - 4871 of 2016

¶3

Petitioner :- Brij Mohan Lal (Deceased) And 5 Ors. Respondent :- Smt. Chandra Kanta Counsel for Petitioner :- Sumit Daga Counsel for Respondent :- Divakar Rai Sharma

¶4

Hon'ble Mrs. Sunita Agarwal,J.

¶5

The present petition is directed against the order dated 28.5.2011 passed by the Additional Civil Judge (Junior Division), Court No. 1, Hathras in Original Suit No. 110 of 1995 (Smt. Chandra Kanta Vs. Brij Mohan Lal (deceased) and others) whereby the amendment application, 'Paper No. 106-A' filed by the plaintiff for amendment of pleadings in the plaint as also the relief, has been allowed. The order of rejection of revision dated 27.4.2016 filed by the petitioners against the aforesaid order is also under challenge.

¶6

The Original Suit No. 110 of 1995 has been filed with the prayer of permanent injunction against the defendant/petitioner with the following relief -

¶7

बजररियये ननिषयेदद्याजद्या स्थद् य ायी प्रनतिवद्यादयी कको वरजरति नकयद्या जद्यावये नक वह सम्परत रजसकद्या नववरिण वद्याद पत्र कये अअंति मम अअंनकति हहै कये दनक्षिणयी भद्याग मम बनिये जयीनिये कको दयीवद्याल लगद्याकरि अथवद्या अन्य नकसयी भयी प्रकद्यारि बअंद करिनिये एवअं उसमये वद्यानदनियी कक आमदरिफति मम बद्याधद्या उत्पनि करिनिये सये बद्याज रिहम |

¶8

The cause of action for filing the suit as narrated in paragraph 11 of the plaint reads as under :-

¶9

यह नक वद्याद कद्यारिण ९ . ५ . ९५ प्रनतिवद्यादयी दद्यारिद्या प्रश्निगति जयीनिये कको बअंद करिनिये कद्या असफल प्रयद्यास करिनिये कये ददौरिद्यानि स्थद्यानि हद्याथरिस न्यद् य ाद्यालय कक सयीमद्या कये अअंतिगरति उत्पनि हहआ एवअं न्यद् य ाद्यालय कको वद्याद कद्या शद्यावणद्यारधकद्यारि प्रद्याप्त हहै |

¶10

From a perusal of the plaint averments and the relief sought therein, it is evident that the plaintiff has sought relief of permanent injunction against the defendant restraining the plaintiff from obstructing the usage of the staircase existing at the southern side of the suit property, description of which has been given at the foot of the plaint.

¶11

By means of the proposed amendment brought vide the application dated 24.7.2009, the plaintiff has sought to assert that she got an exparte interim injunction order which was

¶12

vacated at certain point of time.

¶13

The defendant in order to circumvent the interim injunction order granted in the suit has kept a wooden almirah on the spot so as to obstruct the way of the plaintiff to access the staircase, which is the only access to the first floor of the suit property, which is in occupation of the plaintiff. Further perusal of the record indicates that an application dated 4.9.1999 was filed by the plaintiff to state that the defendant had kept a wooden almirah obstructing the plaintiff's way to the staircase after the interim injunction order dated 28.4.1999 was passed by the court below.

¶14

A perusal of the proposed amendment indicates that the plaintiff seeks a decree of mandatory injunction asking the defendant to remove the wooden almirah kept in front of the staircase, so as to remove any obstruction on the way of the plaintiff.

¶15

This amendment has been allowed vide order dated 28.5.2011 rejecting the objection of the defendant/petitioner for the same being time barred. Learned counsel for the petitioners vehemently argued that the amendments are time barred and the observation of the court below to treat it being within time would cause irreparable loss to the defendant to assert that the wooden almirah was kept on the spot by the defendant much prior to the institution of the suit.

¶16

With the aid of the judgments of the Supreme Court in the case of Vishwambhar and others Vs. Laxminarayan (Dead) through Lrs. and another (2001) 6 SCC 163, Puran Ram Vs. Bhaguram and another, AIR 2008 Supreme Court 1960, L.C.Hanumanthappa (since deceased) represented by his lrs. Vs. H.B.Shivakumar, 2015 All.C.J. 2274 and Vasant Balu Patil and others Vs. Mohan Hirachand Shah and others, (2016) 1 SCC 530 , as well of this Court in Raj Kishore and others Vs. Hira and others, 2015 (4) AWC 3477 , it is submitted that the relief of mandatory injunction cannot be added by way of amendment that too when it is time barred. It is further contended that liberty be granted to the defendant to take a plea before the court below that the relief of mandatory injunction cannot be granted in view of the said prayer being time barred.

¶17

Considering all these submissions of the learned counsel for the petitioners and noticing the fact that the relief of mandatory injunction was sought by the plaintiff to the limited extent i.e. to mandate the defendant to remove obstruction made by him by keeping wooden almirah in front of the staircase. The relief in the original plaint was in the nature of the permanent prohibitory injunction restraining the defendant from making

¶18

any obstruction in the access of the plaintiff to the staircase.

¶19

It is also case of the plaintiff that the wooden almirah was kept by the defendant in order to circumvent the interim injunction order passed by the trial court. It is also reflected from the record that the plaintiff has moved an application in the year 1999 for removal of the wooden almirah with the assertion that it was kept in front of the staircase so as to obstruct her way. It is not disputed in the present petition that the defendant is tenant in a portion of the suit premises which is independent to the premises occupied by the plaintiff at the ground floor and the first floor. The first floor of the house in question is in occupation of the plaintiff and only access to the same is the staircase existing on the spot.

¶20

In the said circumstances of the case and the limited relief by way of mandatory injunction sought by the plaintiff by proposed amendment, this Court is of the considered view that the amendment cannot be said to be time barred. The contention of the learned counsel for the petitioners to keep this plea open for contest before the court below cannot be accepted. Rest of the dispute raised by the parties as to whether the defendant has obstructed the right of the plaintiff to access the staircase or the wooden almirah has been kept on the spot to obstruct the plaintiff's way after institution of the suit, are questions of adjudication on the evidence to be led by the parties.

¶21

It is always open to the parties to lead their evidence to press their prayer before the court below.

¶22

Reliance placed on the abovenoted judgments of the Apex Court is of no benefit to the petitioner.

¶23

For all the above discussions, no interference is required in the order impugned.

¶24

The present petition is, thus, found devoid of merits and hence dismissed.

¶25

Order Date :- 9.1.2019 Pratima

Brij Mohan Lal Deceased and 5 Ors. v. Smt. Chandra Kanta

Case brief

What is this about?

What did the court decide?

Brij Mohan Lal Deceased and 5 Ors. v. Smt. Chandra Kanta

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Siddharth Jain and Another Vs Smt. Batulan and Others

Ranvijay Singh and 2 Others Vs Vith Additional District Judge Deoria and Another

Mashque Vs Civil Judge (S.D.) Allahabad and 4 Others

Ramayan Singh Vs Smt. Lalmuni Singh

Ajay Kumar Pengoria and Another Vs State of U.P.

Jitendra Kumar and 2 Others Vs Rukhshana Khatoon