GURDEV SINGH Vs. TARSEM SINGH

JUDGEMENT

(1.) The present revision petition has been filed under Art. 227 of the Constitution of India for setting aside impugned order dated 11.5.2012 (Annexure P-10) passed by Additional Civil Judge (Senior Division), SBS Nagar, whereby, application of the respondent-plaintiff under Order 6, Rule 17 Code of Civil Procedure for amendment of the plaint has been allowed.

(2.) Briefly, the facts of the case as made out in the present petition, are that respondent-plaintiff filed a suit for permanent injunction restraining the petitioner-defendant from encroaching upon the Rasta bearing Khewat No. 311, Khatauni No. 546, Khasra No. 4416/1974 (0-18) situated in the area of village Chakdana, Tehsil and District Nawanshahar. Said suit was contested by the petitioner-defendant and written statement was filed. During pendency of the aforesaid suit, respondent-plaintiff filed another suit for mandatory injunction to direct the petitioner-defendant to remove his structure and possession from the encroached property of the respondent-plaintiff as mentioned in fard jamabandi for the year 2000-2001, Khewat No. 67, Khatauni No. 92, Khasra No. 4412 (7-1). Thereafter on 212016, the earlier suit No. 634 of 2004 was withdrawn by the respondent-plaintiff. The petitioner-defendant filed reply to the subsequent suit. During pendency of the second suit, respondent-plaintiff filed an application under Order 23, Rule 1 Code of Civil Procedure for withdrawal of the suit with liberty to file afresh on the same cause of action. Thereafter, on 25.9.2009 the application under Order 23, Rule 1 Code of Civil Procedure was withdrawn by the respondent-plaintiff on the ground that he did not want to pursue his application and another application under Order 6, Rule 17 Code of Civil Procedure was moved for amendment of the plaint seeking to incorporate the relief of possession in the suit. Reply to the application was filed but the same was allowed vide order dated 11.5.2012, which is subject matter of challenge in the present revision petition.

(3.) Learned counsel for the petitioner contends that while allowing the application of the respondent-plaintiff, the trial Court has not taken into consideration that the previous suit of the plaintiff, which was also based on the same cause of action qua the same suit property has already been dismissed as withdrawn on 22.12.2006. Subsequently the present suit was filed during the pendency of the earlier suit on the same cause of action, whereas, the subsequent suit was not maintainable. Learned counsel further contends that the trial Court has wrongly allowed the application of the respondent-plaintiff for amendment of the plaint, which is misuse of process of law. Learned counsel also submits that the trial Court has also not taken into consideration that the application of the respondent-plaintiff under Order 23, Rule 1 Code of Civil Procedure for permission to withdraw the present suit with liberty to file afresh on the same cause of action was also withdrawn by the plaintiff on 25.9.2009. It is also the argument of learned counsel for the petitioner that the respondent-plaintiff has failed to conclude his evidence despite availing numerous opportunities after framing of issue on 8.2007 and the application for amendment of the suit was decided after a period of two years of filing the same. At the end, learned counsel for the petitioner submits that the purpose of filing the application for amendment of plaint was to delay the proceedings and great prejudice is going to be caused to him in case the impugned order is not set aside.