ZAMKU Vs. MASARI

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India is directed against the order dated 28.2.2005 passed by the Ilnd Additional District Judge, Jobat, District Jhabua in Civil Appeal No. 23A/03. By the order impugned, the Court below has allowed the application under Order 6 Rule 17, CPC filed by the respondents herein and has permitted them to raise objections with regard to the non-joinder/mis-joinder of necessary parties and cause of action.

(2.) PETITIONERS herein filed a suit for declaration and permanent injunction against the respondents herein. After the trial, the suit was decreed in their favour by the trial Court. Being aggrieved by the judgment and decree passed in favour of the petitioners, respondents herein preferred a first appeal which is pending in the Court of Additional District Judge, Jobat, District Jhabua. During the pendency of the said appeal, respondents herein preferred an application under Order 6 Rule 17, CPC proposing amendment in the written statement so as to raise the plea of non-joinder/ mis-joinder of necessary parties and the cause of action. The application was opposed by the petitioners herein, however, by the order impugned learned Court below allowed the application and permitted the respondents to incorporate proposed amendment in the written statement, hence this petition by the plaintiffs.

(3.) IN view of the aforesaid, this petition is allowed and the order impugned dated 28.2.2005 passed by the Additional District Judge, Jobat, District Jhabua in Civil Appeal No. 23-A/03 is set aside, as a result the amendments incorporated in the written statement shall now stand deleted. Accordingly, this petition stands disposed of. However, there shall be no orders as to costs. Now the appellate Court shall proceed to decide the appeal in accordance with law. Registry is directed to transmit copy of this order to the trial Court forthwith.