SHARDA Vs. SHANGRI

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed by the plaintiff - petitioner, challenging the order dated 3.8.2005 passed by the trial Court, dismissing the application of the plaintiff - petitioner under Order 6 Rule 17 C.P.C., seeking amendment of the plaint.

(2.) The facts which are relevant for the decision of the present petition are that the plaintiff had filed a suit for permanent prohibitory injunction against the defendants. During the pendency of the suit, the plaintiff had filed an application under order 6 Rule 17 C.P.C. seeking to amend the plaint so as to changing the title of the suit by incorporating word "possession" instead of the words "permanent prohibitory injunction". It was alleged in the application that on 13.8.2004, the possession of the suit land was taken form the plaintiff -petitioner under the orders of the Court, in the case Smt. Shangri Vs. Smt. Sharda and hence, the necessity arose for seeking a decree for possession in respect of the suit land. The said application was contested by the defendants by taking up various preliminary objections and alleging therein that the earlier suit for possession was decreed in favour of the present defendant No.1 by the trial Court on 25.3.1996 and the said decree was upheld by the appellate Courts on 2.8.1999, 30.7.2003 and 26.3.2004 respectively and thereafter, the plaintiff had filed the present suit for declaration, between the same parties and the same was not maintainable. After hearing both sides and perusing the record, the learned trial Court dismissed the amendment application of the plaintiff under order 6 Rule 17 C.P.C. vide order dated 3.8.2005. Aggrieved against the same, plaintiff -petitioner filed the present petition under Article 227 of the Constitution of India in this Court.

(3.) Notice of the petition was ordered to be issued to the defendants -respondents and the record of the case was also requisitioned. When the petition came up for hearing before me on 28.10.2005, in the presence of the counsel for both the parties, the learned counsel appearing for the defendants - respondents submitted before me that what to talk of the plaintiff - petitioner being allowed to seek amendment of the plaint, even the suit filed by the plaintiff - petitioner before the trial Court was not maintainable, inasmuch as the previous suit filed by the present defendant -respondent No.1 for possession, on the basis of the title etc., had been decreed in her favour upto the Honble Supreme Court and it was thereafter that the plaintiff, against whom the previous suit was decreed, had filed the present suit, seeking a decree for declaration and permanent prohibitory injunction to the effect that the judgment and decree dated 15.3.1996 passed by the trial Court and affirmed by the learned District Judge, by this Court and by the Honble Supreme Court were vitiated by fraud and misrepresentation and the same be declared as illegal and void and not binding on the rights of the plaintiff. It was further submitted that the present suit filed by the plaintiff was not maintainable and was an abuse of the process of law. It was further submitted that during pendency of the present suit, the present defendants -respondents had taken possession of the suit property in execution of the decree passed in their favour in the previous suit after the objections filed by the present plaintiff - petitioner had been dismissed by the Executing Court and upheld upto this Court. It was further submitted that after the possession was taken by the present defendants - respondents, in execution of the earlier decree passed in their favour, the present plaintiff -petitioner had filed the present application under Order 6 Rule 17 C.P.C. in the present suit, seeking amendment of the plaint, so as to claim a decree for possession and that this application was dismissed by the trial Court by the impugned order and against the dismissal of the same, the plaintiff -petitioner had filed the present petition under Article 227 of the Constitution of India.