MOHAMMAD ISHAK BEG Vs. NAGAR PANCHAYAT & OTHERS

JUDGEMENT

(1.) IN this petition filed under Article 227 of the Constitution, the petitioner/plaintiff has challenged the order dated 10.11.2008 (Annexure P/1), whereby his applications preferred under Order 6 Rule 17 and Order 14 Rule 5, CPC, were rejected by court below.

(2.) THE petitioner/plaintiff filed a suit for mandatory injunction in the year 2007. At the stage when the said case was fixed for evidence, an application under Order 6 Rule 17, CPC, was filed on 1.9.2008. The other side opposed the said application. Another application under Order 14 Rule 5 CPC was filed on 1.7.2008. The respondents filed reply and opposed this application as well. The court below rejected the amendment application on the ground that the facts pleaded in the amendment application were well known to the plaintiff. There is an inordinate delay in filing the said application. The plaintiff cannot be permitted to take different and contradictory stand by way of amendment. Lastly, it is held that the petitioner has not shown any due diligence in belatedly filing the application. The other application was also dismissed.

(3.) MS . Sweta Bothra, learned counsel for the petitioner assailed the said order by contending that the impugned order itself shows that suit was at the stage of evidence but recording of evidence has not commenced. In other words, no witness has entered the witness box. She submits that even affidavits under Order 18 Rule 4 CPC have not been filed before the court below. She heavily relied on para 2 of application dated 1.7.2008. It is urged that in view of judgments passed by various Courts, issue No.1 needs to be deleted. In support of her contention, she relied on (Brijesh Kumar Trivedi vs. Smt. Lalibai, 2014 1 MPWN 47) and (Jaspreet Kaur vs. Ramkrishna, 2010 3 MPLJ 387).