RAJENDRA SHANKER TRIPATHI Vs. AJAY KUMAR GUPTA

JUDGEMENT

(1.) HEARD learned Counsel for the opposite parties.

(2.) LEARNED Counsel for the petitioner submits that the petitioner filed a regular suit no. 144 of 1998 for permanent injunction along with an application for temporary injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. On 9.8.1999, Advocate Commissioner so appointed by the trial Court submitted his report and map, stating therein that new construction were being made over the land in suit. The said report has been confirmed subject to evidence. On 19.5.2009, plaintiff-petitioner's evidence was closed and on 9.7.2009, defence evidence was started but could not be completed due to adjournment sought by the defendants. Thereafter, on 8.9.2009, an application for amendment under Order VI Rule 17 of the Code of Civil Procedure was filed by the plaintiff/petitioner, praying therein that he may be permitted to describe the land in suit by the letters started in the commissioner's report and map of the Advocate Commissioner to give a clear description of the land in suit as provided under VII Rule 3 of the Code of Civil Procedure and as required in law laid down by the Apex Court. The Civil Judge (Senior Division), Unnao, vide order dated 17.9.2009, rejected the amendment application, against which, a revision was filed before the District Judge, Unnoa, who, vide order dated 15.4.2009, also dismissed the same. Feeling aggrieved, the petitioner has filed the instant writ petition inter alia on the grounds that the courts below acted illegally in the exercise of their jurisdiction in refusing to permit amendment of the plaint to make it in consonance with the provision contained in Order VII Rule 3 of the Code of Civil Procedure and to provide a clear description of the property in dispute.

(3.) ON the other hand, learned Counsel for the respondent contended that there is neither any illegality nor infirmity in the impugned orders passed by the Trial Court which has been approved by the revisional Court. Further, the amendment which has been sought by the petitioner, if allowed, it will change the nature of the plaint, which is not permissible under law.