Sushil Chauhan Vs Ankush

26 of 2020, tilted as Ankush Vs. Sushil Chauhan, whereby two separate applications of the petitioner herein under Order 6 Rule 17 of the Code of Civil Procedure, for amendment of written statement and under Order 14 Rule 5 of the Code of Civil Procedure, for amendment of issues, have been dismissed by a common order.

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Petitioner herein is the defendant before learned Trial Court. Respondent herein (plaintiff) has filed a suit for permanent prohibitory and mandatory inunctions against the defendant on the premise that the plaintiff alongwith other co-owners, is recorded as joint owner in possession of land comprised in Khata Khatouni No. 2/2 Kita 1, Khasra No.469 measuring 0-01-57 Hectare, in Mohal Gorli Patwar Circle Maraog Tehsil Chopal, District Shimla, H.P. (for short “suit land”) and the defendant with help of his associates had started construction of road to village Gorli and in such process has started damaging the suit land not only by throwing debris thereon but by

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its excavation also.

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Neutral Citation No. ( 2025:HHC:5501 )

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3. Defendant has filed the written statement

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by taking objection of non-joinder of necessary parties.

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It has been submitted that there are several other owners of the suit land and all of them ought to have been made parties. It has also been submitted that since plaintiff has sought relief against persons other than the defendant, the said persons also were required to be impleaded as party defendant. The defendant has claimed right of passage over the suit land by pleading that the same has been used for a period of more than twenty years without interruption and the right has matured by way of easement of prescription and necessity. As per defendant, no new road was being constructed and only repair work was being carried on an existing road.

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During the pendency of the suit, defendant filed an application for amendment of written statement and sought to add following preliminary objections:-

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“ Preliminary objection no-4 "that although any portion of the land in dispute is not owned by the plaintiff, in any event if it is proved that

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Neutral Citation No. ( 2025:HHC:5501 )

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any portion of the same is owned by the plaintiff and his brothers, the suit is not maintainable unless his brothers are added as necessary parties. The suit, as such, is bad for non-joinder of necessary parties as plaintiff or Performa defendant.

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5. That apparently the suit land is used as passage by the general public. The suit is not maintainable unless the general public is added as a necessary defendant and leave of the court is obtained to sue the general [public in accordance with law and CPC after obtaining necessary permission from the court.

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6. That the suit is bad for non joinder of Gram Panchayat Gorli Maraog as a necessary defendant in the suit.”

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It was averred in the application that the passage in dispute was owned by defendant and his brother alongwith several other villagers and for the such reason brother of the defendant and other villagers were required to be impleaded as defendant. It has further been stated that the land in dispute had been used by several villagers and the general public from time immemorial and hence, the suit

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Neutral Citation No. ( 2025:HHC:5501 )

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was not maintainable unless general public was sued in accordance with law.

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By way of second application under Order 14 Rule 5 of the Code of Civil Procedure, defendant sought the framing of additional issues on the premise that the defendant has raised specific plea of having acquired easement over the suit land by prescription and necessity.

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Both the applications were contested by the plaintiff. Learned Trial Court has dismissed both the applications by a common impugned order, as noticed above.

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While dismissing the application for amendment of written statement, learned Trial Court has held that firstly, the issue as to non-joinder of necessary parties had already been framed and secondly, the application for amendment was not maintainable after commencement of trial in absence of proof of inability to do so despite due diligence.

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As regards the second application for amendment of issues learned Trial Court found that

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Neutral Citation No. ( 2025:HHC:5501 )

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the issue regarding alleged acquisition of easementary right by defendant has already been framed and in the given circumstances the application filed by the defendant was found to be not bonafide .

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I have heard learned counsel for the parties

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and have also gone through the record of the case carefully.

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The supervisory jurisdiction of this Court under Article 227 of the Constitution of India, is restrictive. It can be exercised to correct only gross errors of law and perversity committed by the Courts and Tribunals.

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In the facts of the case at hand, no illegality or perversity can be said to have been committed by learned Trial Court while passing the impugned order. The reasons assigned by learned Trial Court are clearly borne from the records.

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Learned Trial Court has framed the

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following issues on 10.05.2022:-

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i) Whether the plaintiff is entitled to the relief of the permanent prohibitory injunction from restraining the defendant from

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Neutral Citation No. ( 2025:HHC:5501 )

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causing any kind of interference in his peaceful possession of suit land, as prayed? OPP.

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ii) Whether the plaintiff is entitled to the relief of mandatory injunction directing the defendant to remove any type of debris over the suit land, as prayed? OPP

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iii) Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD.

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iv) Whether the suit of the plaintiff is not maintainable, as alleged? OPD.

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v) Whether the suit is not properly valued the purposes of court fee and jurisdiction, as alleged? OPD.

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vi) Whether there is any passage over the suit land which is used by defendant and villagers as easement of prescription and necessity, as alleged? OPD

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vii) Relief.

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As regards the objection of defendant with respect to non-joinder of necessary parties, issue No. 3 is already there. The provision of Order 6 Rule 17 of the Code of Civil Procedure, does not provide an absolute right to either of the parties to amend pleadings at any stage of the suit. After the amendment carried to aforesaid provision vide Act

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Neutral Citation No. ( 2025:HHC:5501 )

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No. 22 of 2002, a proviso has been added which prohibits allowances of application for amendment after commencement of trial, unless the Court comes to the conclusion that in-spite of due diligence, the party could not have raised the matter before the commencement of trial. In the application for amendment of written statement filed by defendant, not even a whisper has been made, as to why, the amendment was not sought before commencement of trial. That being so, learned Trial Court has rightly exercised the jurisdiction and the order passed on the application for amendment of written statement cannot be interfered with.

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Similarly, issue No. 6 has already been framed on the basis of the alleged plea of defendant to have acquired right of passage in the suit land as an easement by prescription. The issues framed on 10.05.2022 are on the basis of pleadings of the parties.

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As regards the prayer of defendant to frame issue regarding acquisition of right of passage through suit land by easement of necessity, the same has rightly

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Neutral Citation No. ( 2025:HHC:5501 )

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been rejected as no factual foundation can be found in the pleadings.

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In result, the petition is dismissed with no order as to costs.

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The records of learned Trial Court be returned immediately.

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Parties are directed to appear before learned Trial Court on 24.03.2025.

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It is made clear that the observations made hereinabove shall have no bearings on the merit of the case and shall be construed for the disposal of the present petition only.

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Pending miscellaneous application(s), if any, shall also stand disposed of.

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(Satyen Vaidya) 10^th March, 2025 Judge ( sushma )

Sushil Chauhan v. Ankush

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Sushil Chauhan v. Ankush

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