SURESH SOOD Vs. ANITA

JUDGEMENT

(1.) The applicant/appellant/plaintiff has filed the present application under Order 6 Rule 17 read with Sec. 151 of CPC for amendment of the plaint.

(2.) It is asserted that the plaintiff has filed the present suit seeking a permanent prohibitory injunction and mandatory injunction pleading that he has a passage to his property, which has been in existence for more than 70 years from the time of his predecessors and is being used uninterruptedly, peacefully and as a matter of right as an easement. The plaintiff has sought the relief of injunction and relief of removal of obstruction to the passage. The plaintiff has not sought the declaration that he be declared to have acquired the right of passage as claimed in the plaint. When the matter was listed for hearing, the respondents/defendants raised an objection that in view of the judgment of this Court dtd. 29/5/2019 in RSA No. 407 of 2018 titled Jaram Singh Vs. Santosh reported in 2019(3) HLR 1519, the relief of injunction cannot be granted without seeking a declaration. All the relevant facts to seek relief have already been pleaded. However, the plaintiff wants to seek a declaration regarding his entitlement to the right of passage to avoid any technical objection and ambiguity. The amendment will not cause any prejudice to the respondents/defendants and is necessary for determining the controversy between the parties. It has become necessary to seek the declaration in view of the judgment of this Court. Therefore, it was prayed that the present application be allowed and the applicant/plaintiff be permitted to amend the plaint. 2. The application is opposed by filing a reply taking preliminary objections regarding lack of maintainability, the applicant being estopped to file the present application by his acts, conduct and deeds and the application not being bona-fide. The contents of the application were denied on merits. It was asserted that the suit was filed on 2/6/2000 and the matter is pending before various Courts. The rdiligence to plaintiff failed to seek relief, which shows a lack of due on his part. The suit is not maintainable in view of the judgment of this Court.

(3.) A rejoinder denying the contents of the reply and affirming those of the application was filed.