Dismissed

Firm Green Diesel v. the Additional District Judge

Rajasthan HC1 Dec 2011CW/4344/2005

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the trial court's rejection of an amendment application under Order 6 Rule 17 CPC. The court held that since the petitioner-plaintiff was never in possession of the disputed land, the trial court correctly refused the amendment, even after dispossession was alleged post-High Court order.

What did the court decide?

The writ petition and the stay application were dismissed.

Firm Green Diesel Vs the Additional… — Civil Procedure and Limitation | Rajasthan HC (2011)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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ORDER

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S.B. Civil Writ Petition No. 4344/2005 S.B. Civil Misc. Stay Application No. 3796/2005 (Firm Green Diesel Versus The Additional District Judge & Others)

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Date of Order :: 1^st December, 2011

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HON'BLE MR. JUSTICE MAHESH BHAGWATI

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Mr. M.M. Ranjan, Sr. Counsel with Mr. Arun P. Singh, counsel for the petitioner.

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Mr. R.K.Mathur, Sr. Counsel) with ) for the respondents Mr. Aditya Mathur ) Mr. N.S. Chauhan ) Mr. Ganesh Chand Gupta )

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BY THE COURT :

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By way of the instant writ petition, the petitioner has beseeched to quash and setaside the order dated 11^th May, 2005, whereby the learned Additional District Judge (Fast Track) No.1, Alwar dismissed the application of the petitioner-plaintiff filed under Order 6 Rule 17 CPC seeking an amendment therein.

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Having heard the learned counsel for the parties and carefully perused the relevant material on record, it is noticed that a suit for declaration and permanent injunction came to be filed by the plaintiff-petitioner against the respondents-defendants. During the pendency of the suit, the petitioner-plaintiff filed an application under Order 6 Rule 17 CPC seeking an amendment in the plaint. The learned trial court

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dismissed the application for the reasons mentioned therein.

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Aggrieved with the order dated 11^th May, 2005, the petitioner-plaintiff has invoked extraordinary jurisdiction of this Court under Article 227 of the Constitution.

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Learned counsel for the petitioner canvassed that he filed an application for temporary injunction along-with the plaint imploring the court to declare the contract entered into by the parties null and void and restrain the respondents-defendants from raising any construction & not creating any obstacle in the peaceful use thereof. The learned trial court dismissed the application for temporary injunction on the ground that the petitioner-plaintiff was not in possession of the land in dispute. Aggrieved with the said order the petitionerplaintiff preferred an appeal in the High Court and the High Court also dismissed the Civil misc Appeal No. 825/1995 vide order dated 17^th March, 2005. Learned counsel further canvassed that after the order dated 17^th March, 2005 having been passed by the High Court, the respondentsdefendants dispossessed him of the property in question and thus, on account of this event having taken place, he sought an amendment in the plaint and filed an application, which was arbitrarily dismissed by the learned trial court sans

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assigning any cogent reason. Learned counsel also contended that the fact of dispossessing the petitioner-plaintiff of the property cannot be abandoned by the trial court at this stage. In case he fails to prove the fact of dispossession of the property, his suit shall fail , but the amendment cannot be disallowed by the learned trial court. Another ground taken by the learned trial court to dismiss the amendment is that the proposed amendment shall alter the nature of the suit, but that is not the case. The Hon'ble Apex Court has held in the case of Sampat Kumar Versus Ayyakannu reported in AIR 2002 SC 3366 that if a suit for declaration and permanent injunction is filed by the plaintiff and thereafter he is dispossessed of the property, the plaintiff can seek an amendment in respect of restoration of possession and the said amendment shall not change the nature of the suit. Hence, on both the counts, the impugned order rendered by the learned trial court is arbitrary and perverse, which deserves to be set-aside.

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E Converso, the learned counsel for the respondents-defendants defended the impugned order and stated the same to be just and proper and canvassed that it did not warrant any intervention. Learned counsel took me through the order passed by this Court in CMA No. 825/1995 on 17^th March, 2005 and contended that the High Court

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while deciding the Misc. Appeal categorically observed that the respondents defendants were in the possession of the disputed property. The grievance put forth by the petitioner-plaintiff before the High court was that the respondentsdefendants could further alienate the property. Keeping in view this fact in mind, this Court disposed of the appeal with the direction that the respondent no.3 Sunder Lal Agarwal Enterprises, who was stated to be in possession of the property shall not further alienate till the disposal of the suit. Learned counsel further canvassed that the petitioner-plaintiff was never in possession of the land in dispute and that was the main ground, on the basis of which the learned trial court dismissed the application of temporary injunction. It is wrong to say that the petitioner-plaintiff was ever in possession of the disputed property and respondents-defendants dispossessed him of the same after the order dated 17^th March, 2005 having been passed by the High Court. In view of all these facts and circumstances, the writ petition is totally frivolous, vexatious and on account of there being no force, deserves to be outrightly dismissed.

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Having reflected over the submissions made at the bar and carefully scanned the relevant material, what is found to have been prominently emerged in the instant case is that

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the petitioner-plaintiff was never in the possession of the land in dispute. It was averred by the learned counsel for the respondentsdefendants before the High Court that Sunder Lal Agarwal Enterprises was in the possession of the disputed property and the apprehension of the learned counsel for the petitioner was that he could further alienate the disputed property and therefore, keeping this fact in mind the High Court directed the respondents-defendants not to further alienate the property till the disposal of the suit. Once the fact of respondents-defendants being in possession on the property in dispute had ascertained before the High Court then in contra to it, how the petitioner-plaintiff can be believed to have said that he was in possession of the said property. If the argument with regard to possession raised by the learned counsel for the respondents-defendants before the High court was wrong, the same could have been rebutted by the learned counsel for petitioner-plaintiff, but it is not found to have been rebutted. That clearly evinces that till 17^th March, 2005, the petitionerplaintiff was never in possession of the disputed property. Learned trial court is found to have rightly observed that the petitioner-plaintiff was not in possession of the disputed property, hence the proposed amendment could not be permitted. The judgments cited by the learned counsel for the

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petitioner are of no avail and render no assistance to petitioner-plaintiff. In Contra, the impugned order rendered by the learned trial court is found to be just and proper and suffers from no infirmity.

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I do not find any ground to

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interfere with the impugned order and thus, the writ petition being devoid of any substance deserves to be dismissed.

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For the reasons stated above, the writ petition fails and the same stands dismissed. 9. Consequent upon the dismissal of writ petition, the stay application, filed therewith, does not survive and that also stands dismissed.

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(MAHESH BHAGWATI), J.

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Firm Green Diesel v. the Additional District Judge

Case brief

What is this about?

What did the court decide?

Firm Green Diesel v. the Additional District Judge

Case brief

What is this about?

What did the court decide?

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