Sudesh Kumar and Another Vs Satish Kumar and Another — Himachal Pradesh HC (2025) — LawSathi Research

Sudesh Kumar and Another Vs Satish Kumar and Another — Himachal Pradesh HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Whether the impugned order of the learned Civil Judge allowing amendment of the counter claim warrants interference by this Court. +3 more

Court's answer

No case for interference with the impugned order was made out and, in result, the petition was dismissed.

Ratio / Principle

The objection petition filed by the respondents to the Local Commissioner's report contained no admission of the existence of septic tank, latrine etc.; it only made mention of projection of the lintel of latrine and boundary walls of the plaintiff to be on the land of the objector.

Key takeaways

It is for the respondents to prove the allegations raised by them; mere averments in the written statement or counter claim do not absolve them from proving the alleged facts in accordance with law.ratio¶30
The suit being at an initial stage with the issues not yet framed, no prejudice is likely to be caused to the petitioners by allowance of the amendment, as they will get ample opportunity to rebut the amended pleadings during the course of trial.ratio¶31

Detailed headnote1 paragraphs

High Court of Himachal Pradesh (Satyen Vaidya, J., oral judgment), CMPMO No. 585 of 2023, decided 11.03.2025: petition dismissed challenging the order dated 13.07.2023 of the Civil Judge, Court No. II, Dehra, in CMA No. 308 of 2023 in Civil Suit No. 127 of 2014, whereby the respondents' application for amendment of the counter claim was allowed so as to add Head Note 'B' and para-4A alleging that in December, 2022 the petitioners encroached upon the suit land by constructing a septic tank, latrine and bathroom. Held: the respondents' earlier objection petition to the Local Commissioner's report made no admission of the existence of the septic tank or latrine, having referred only to projection of the lintel of the latrine and the plaintiff's boundary walls; averments in a counter claim do not absolve the party from proving them at trial; and, the suit being at an initial stage with issues unframed, no prejudice was caused, the petitioners retaining ample opportunity to rebut the amended pleadings. No case for interference being made out, the petition was dismissed and pending miscellaneous applications stood disposed of.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMPMO No. 585 of 2023 Decided on: 11.03.2025

Sudesh Kumar and Anr. .…Petitioners.

Versus Satish Kumar and Anr. …Respondents.

Coram

The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?¹

For the petitioners : Mr. Dibender Ghosh, Advocate. For the respondents : Mr. Sanjeev K. Suri, Advocate.

Satyen Vaidya, Judge (Oral)

Petitioner has assailed order dated 13.07.2023, passed by learned Civil Judge, Court No. II, Dehra, H.P. in CMA No. 308 of 2023 in Civil Suit No. 127 of 2014 titled as Satish Kumar and Anr. Vs. Sudesh Kumar and Anr., whereby the

1 Whether reporters of the local papers may be allowed to see the judgment?

2

Neutral Citation No. ( 2025:HHC:5635 )

application for amendment of counter claim filed by the respondents herein has been allowed.

Petitioners herein have filed a suit for permanent prohibitory injunction against the respondents seeking to restrain the respondents from raising any construction and also from raising projection of roof towards the suit land.

Respondents are contested the suit and have also filed a counter claim. Respondents have also prayed for a decree of permanent prohibitory injunction against the petitioners seeking to restrain them from removing the trees and from throwing dirty water in the land comprised in Khasra Nos. 105, 106 and 108 at Mohal Ghurkal, Mauja Bharoli, Tehsil Jwalamukhi, District Kangra, H.P.

During the pendency of the aforesaid proceedings, respondents filed an application seeking amendment of the counter claim. It was alleged that in December, 2022, petitioners encroached upon the suit land by constructing

3

Neutral Citation No. ( 2025:HHC:5635 )

septic tank, latrine and bathroom on it.

Accordingly, Head Note ‘B’ and para-4A was sought to be added in the counter claim. The application was resisted on behalf of the petitioners. Learned

Trial Court has allowed the application vide impugned order and taking exception thereto the petitioners have filed the instant petition before this Court.

I have heard learned counsel for the

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

It is admitted by both the sides that the issues in the case have not yet been framed.

Learned counsel for the petitioners has contended that the fact sought to be incorporated in the counter claim by way of amendment is a bundle of concoction and falsehood. He made reference to objection petition filed by the respondents to the report of the Local

Commissioner in earlier part of the proceedings to assert that in said objection petition, the

4

Neutral Citation No. ( 2025:HHC:5635 )

respondents had already admitted the existence of latrine on the suit land.

I have seen the copy of objection petition filed on behalf of the respondents. Except that the respondents had made mentioned about projection of the lintel of latrine and boundary walls of the plaintiff to be on the land of objector, no other admission as to existence of septic tank, latrine etc. has been made. Even otherwise, when the respondents have alleged the raising of latrine, bathroom and septic tank on the suit land, it has reference to the land claimed by the respondents to be their. It is for respondents to prove the allegations. Only by making averments in the written statement or counter claim, the respondents are not absolved from proving the alleged facts in accordance with law.

As noticed above, the suit is at initial stage and for such reason no prejudice is likely to be caused to the petitioners by allowance of amendment as they will get ample opportunity to

5

Neutral Citation No. ( 2025:HHC:5635 )

rebut the amended pleadings during the course of trial.

In result, no case for interference is made

out and the petition is dismissed.

Pending miscellaneous application(s), if

any, shall also stand disposed of.

(Satyen Vaidya) 11^th March, 2025 Judge

( sushma )