TARIQ Vs. DAYAL SINGH

JUDGEMENT

(1.) The present writ petition is filed against the impugned order dtd. 16/2/2008 passed by Civil Judge, Junior Division (East), Jaipur City, Jaipur wherein the application for amendment of plaint under Order 6 Rule 17 read with Order 1 Rule 10 of the Code of Civil Procedure, filed by the respondent-plaintiff in Civil Suit No. 528/1994 was allowed.

(2.) Learned counsel for the petitioner-defendant has submitted that the respondent-plaintiff Dayal Singh had filed a civil suit against the petitioner-defendant for permanent injunction in 1992 wherein the petitioner-defendant had filed his written statement and had categorically denied all the averments made in the plaint by the respondent-plaintiff. Moreover, along with the said plaint, the respondent-plaintiff had also moved an application for temporary injunction against the petitioner-defendant. However, vide order dtd. 4/5/2007, the said application was dismissed by the learned Trial Court. Thereafter, the respondent-plaintiff filed an application under Order 6 Rule 17 read with Order 1 Rule 10 of the Code of Civil Procedure for the amendment of his plaint with a prayer that the petitioner-defendants be directed to deliver possession over the land in dispute and the construction therein be restored. Subsequently, vide impugned order dtd. 16/2/2008, the application filed by the respondent-plaintiff for amendment of the suit and for impleading the Civil Lines Housing Cooperative Society Ltd. as defendant No.2 was allowed; against which the present writ petition is filed by the petitioner-defendant.

(3.) Furthermore, learned counsel for the petitioner-defendant submitted that by allowing the application for amendment of suit and for impleading the society as defendant No.2, the learned Court below has erred in law and has passed the order in excess of the jurisdiction conferred upon it by Order 6 Rule 17 of the Code of Civil Procedure. In this regard, it was submitted that vide order dtd. 4/5/2007, it was categorically held by the learned trial court that the respondent-plaintiff did not have possession over the land in question. Moreover, no allotment letters qua the said piece of land were filed in support of the amendment application/suit by the respondent-plaintiff. Additionally, despite the fact that the respondent-plaintiffs alleged removal of construction on the said piece of land, they did not implead Jaipur Development Authority (JDA) as a party to the suit. Learned counsel further submitted that the suit was originally filed for permanent injunction. However, by way of the said application, the respondent-plaintiff tried to alter the same by making it into a suit for possession. Therefore, it was prayed that by allowing the said application at this stage, the learned Civil Judge had acted in excess of its jurisdiction. In support of his contentions, learned counsel for the petitioner-defendant placed reliance upon the dictum of the Apex Court judgment in (2008) 4 SCC 594 titled as Anathula Sudhakar vs. P. Buchi Reddy and Ors.