PRIKSHAT MEHDUDIA Vs. D.D.BHARDWAJ

JUDGEMENT

(1.) The Petitioner is the Plaintiff whereas Respondent is Defendant and they will be referred as such in this judgment. The Plaintiff is aggrieved by the impugned judgment passed by the trial Court whereby his application under Order 6, Rule 17, Code of Civil Procedure for amendment of the plaint is dismissed.

(2.) The brief facts are that on 4.7.1992 the Plaintiff filed a civil suit for permanent prohibitory injunction restraining the Defendant from obstructing the passage comprised in Khasra No. 297, as stated in relief clause of the plaint. The Defendant has contested the suit mainly on the ground that there has been no common passage as claimed by the Plaintiff, though there are other common passages as stated in Paragraph-8 of the written statement available to the Plaintiff. On the pleadings of the parties, issue No. 1 is as under:

(3.) In the application under Order 39, Rules 1 and 2, Code of Civil Procedure ad-interim injunction was granted on 6.7.1992 restraining the Defendant "from creating any sort of obstructions upon disputed path leading from Khasra Nos. 297, 274 to the Mall Road Shimla which is in peaceful use of the Petitioner, " which, after hearing the Defendant, was made absolute on 2.1.1993. The appeal filed by Defendant against the interim injunction order dated 2.1.1993 was also dismissed by Additional District Judge on 27.6.1995. Both the trial Court and appellate Court, while affirming the interim injunction order, relied upon revenue record, including Misal Haquiat, to come to the conclusion that prima-facie there exists common path on Khasra Nos. 297 and 274. After recording the evidence of the parties, the trial Court was at the stage of recording rebuttal evidence when the Plaintiff filed application under Order 26, Rule 9, Code of Civil Procedure on 23.7.1998 for appointment of the Local Commissioner to visit and inspect the spot and make report on the alleged obstruction caused by the Defendant on the common passage. Another application was also filed on 23.7.1998 for seeking police assistance to enforce the interim injunction order dated 6.7.1992 confirmed on 2.1.1993. Both these applications were dismissed by a common order dated 15.9.1998. The stand of the Defendant in these applications was that he has been making construction of his house as per sanctioned plan and debris are placed on Khasra Nos. 276 and 277 of which he is the owner and he has not disobeyed the interim order of injunction in any manner. He had also pointed out that in fact there is no path from Khasra No. 297 and Khasra No. 274 for which interim order of injunction has been granted.