LAWS(HPH)-2016-7-159

NEERAJ AND OTHERS Vs. RAJINDER KUMAR AND OTHERS

Decided On July 05, 2016
Neeraj and Others Appellant
V/S
Rajinder Kumar And Others Respondents

JUDGEMENT

(1.) The present petition is maintained by the petitioners under Art. 227 of the Constitution of India, for quashing and setting the order dated 10.11.2015, passed by learned Civil Judge (Senior Division), Chamba, District Chamba, H.P, in case titled Neeraj & others Vs. Rajinder Kumar and others , in an application filed by the petitioners/applicants under Order 6, Rule 17 of the Code of Civil Procedure, dismissing the application of the petitioner with a prayer to allow the petitioners/plaintiffs to amend the plaint.

(2.) Brief facts giving rise to the present petition are that the petitioners/plaintiffs (hereinafter referred as 'plaintiffs') maintained the suit for mandatory injunction against the respondents/defendants (hereinafter referred as 'defendants') before the learned Civil Judge (Senior Division), Chamba, with a prayer that respondents No.1 to 4 be restrained from constructing the window panes of the glaze of second floor towards the house of the plaintiffs by issuing a mandatory injunction, but after filing of the suit, the defendants have in fact raised construction of the first floor of the window panes of the glaze, in such a manner that they have encroached upon the open air towards the house of the plaintiffs. So, the suit was required to be amended by including the loss. As per the plaintiffs, defendants No.1 to 4 have got the window panes of the glaze of the second floor towards the house of the plaintiffs during the pendency of the suit. Plaintiffs claimed the relief of mandatory injunction qua the window panes of the glaze of the second storey/floor of the house of the defendants and for that purpose the plaintiffs intend to amend their plaint in the following manner :

(3.) Reply to the application was filed. As per the defendants, plaintiffs have already sought the relief of mandatory injunction in their amended plaint, which was filed by them in the month of April, 2009, when plaintiffs moved an application under Order 6, Rule 17 of the Code of Civil Procedure for amendment of their plaint. Plaintiffs have filed another application under Order 6, Rule 17 of the Code of Civil Procedure, to fill up the lacuna of their case to which they are not entitled.