GOVINDBHAI GELABHAI PATEL Vs. MADHABHAI PRABHUDAS PATEL

JUDGEMENT

(1.) This Civil Revision Application is preferred by the original plaintiff against the judgment and order dated 25th of August, 1995 passed by Civil Judge, Junior Division, Unjha, whereby the trial Court has rejected the application at Exh. 105 for amendment of plaint filed by the plaintiff under Order 6 Rule 17 of C. P. Code on the ground that earlier application for amendment of plaint which was filed at Exh. 56 was rejected on 9th of July, 1993 and hence the second application was barred by principle of res judicata.

(2.) The petitioner-plaintiff instituted a Regular Civil Suit No. 149 of 1990 in the Court of Civil Judge at Unjha for declaration that he has a right of way in the open parcel of land admeasuring 13 feet x 40 feet on the southern side of the plot of defendant bearing Revenue Survey No. 2168/1 and for further declaration that the defendant has no right to put up construction over such land. He also prayed for permanent injunction restraining the respondents-defendants from putting up any construction on the said open land.

(3.) The petitioner-plaintiff applied for temporary injunction by Application at Exh. 5 and the trial Court initially granted order of maintenance of status quo requiring the defendants to maintain status quo over the said parcel of land. It appears that despite such injunction directing the defendants to maintain status quo of the open part of the land, the defendants continued to put up construction and in fact completed the construction. Since the defendants had in blatant disregard of the order of the Court, put up construction, plaintiff moved an application at Exh. 56 on 24th April, 1990 inter alia praying to amend the plaint and claiming that the respondentsplaintiffs be directed by way of mandatory injunction to remove the unauthorised construction which they have made in violation of the order of injunction.