KRISHAN KUMAR Vs. RAJMAL

JUDGEMENT

(1.) PETITIONER -plaintiff, by filing the present revision petition under Article 227 of the Constitution of India, has prayed for setting aside orders dated 17.9.2008 passed by the learned Civil Judge (Junior Division), Hisar whereby his application under Order 6 Rule 17 CPC for amendment of the plaint has been dismissed.

(2.) THE facts are that the petitioner-plaintiff filed a suit on 6.11.2006 for mandatory injunction seeking direction to the respondents-defendants to fill up the earth in the trench, which was dug up by them near/adjacent to the northern wall of the house of the plaintiff and further for permanent injunction restraining them not to dig any khai or to cause damage to the foundation of the house of the plaintiff, in any manner. Along with the suit, an injunction application under Order 39 Rules 1 and 2 CPC was also filed. Defendants-respondents appeared and contested the suit. The interim injunction application of the petitioner-plaintiff was dismissed and appeal filed against the same was allowed by the learned Appellate Court. In pursuance of the directions of the learned Appellate Court, it is stated that the respondents- defendants have filled up the trench allegedly dug by them.

(3.) LEARNED trial Court observed that the petitioner-plaintiff is estopped from raising the plea that actually the trench in question is towards the eastern side of the house in stead of already pleaded though, inadvertently, that the same existed towards the northern side of the house and the petitioner- plaintiff was not entitled to substitute the word "northern' with "eastern" side of the wall on the ground that even the Local Commissioner, in its report dated 9.12.2006, had reported that the trench/khai was dug by the defendants in the northern side of the house of the plaintiff, as also the same had been filled up by the respondents-defendants in compliance with the orders passed by the learned first Appellate Court. Learned trial Court further rejected the plea of damages sought to be inserted in the relief clause by relying that in view of the material placed on record, the possibility of the cracks in the building of the plaintiff due to age and cheap construction, could not be ruled out. Thus, the application was dismissed vide impugned orders dated 17.9.2008.