JAGDISH RAM Vs. VISHWAMITTER

JUDGEMENT

(1.) The petitioner is aggrieved by the order passed by the learned Civil Judge (Junior Division) Court No. II, Amb, disposing of application(s) under Order 6 Rule 17 of the Code of Civil Procedure ('CPC' in short) and 26 Rule 9 of CPC. The petitioner, who was the plaintiff before the learned trial Court, filed an application for amendment of the pleadings therein that defendant Nos. 19, 20 and 21 have started illegal construction on Khasra No. 536 etc. They succeeded in raising two storeys alongwith rooms etc. Petition under Order 39 Rule 2-A of CPC was instituted against the three defendants, which is pending in Court. The application further proceeds that defendant Nos. 31, 32 and 33 have also raised illegal construction while the order of status quo was enforced. The application for amendment could not be filed at an earlier stage since a petition under Article 227 of the Constitution of India being CMPMO No. 194 of 2008 was pending in the High Court and finally disposed of on 15.9.2011 and after the record was received by the learned trial Court the application for amendment was filed. This application was opposed. The learned trial Court while dealing with the aspect of amendment holds that the main dispute between the parties is as to whether the suit land can be partitioned or not. The Court observes that the parties are co-sharers and in this eventuality, mandatory injunction for demolition of super structure cannot be granted to a co-sharer. But in such eventuality, in case substantial injury and damage is proved, the plaintiff can only sue for damages. It would be only after passing of the preliminary decree for partition that the case of the parties can be considered. The learned Court then proceeds that the suit is old and was instituted in the year 1994 and now after a period of 18 years, present application has been initiated.

(2.) Application under Order 26 Rule 9 of CPC instituted by the plaintiff was taken up and rejected basically on the ground that it is not maintainable as the suit land is still joint.

(3.) Before adverting to the submissions made by the learned counsel appearing for the parties, the learned Court was well advised to consider the applications separately on their respective merits and not to lump them together.