SHIVKARAN Vs. RATANLAL BAIRWA

JUDGEMENT

(1.) The petitioner-plaintiff is aggrieved by the order dated 27.3.2014 passed by the Additional Civil Judge (Jr. Div.) & Metropolitan Magistrate No.2, Jaipur Metropolitan whereby the learned Magistrate has dismissed the application filed by the petitioner under Order 6, Rule 17 CPC and has declined to permit him to amend the plaint.

(2.) The brief facts of the case are that petitioner-plaintiff, Shivkaran, filed a civil suit for perpetual injunction against the respondent-defendant, Ratanlal Bairwa, with a prayer to restrain the defendant from demolishing the wall situated in the northern portion of the plaintiff's plot and from raising construction thereon. The respondent filed written statement and denied the averments made in the plaint. On the basis of pleadings of the parties, the learned trial court framed issues in the matter. By order dated 17.12.2003, status quo order was passed by the learned trial court in the matter. As per petitioner's case, despite status quo order, the respondent raised construction on the wall. Therefore, the learned trial court appointed Commissioner to inspect the site and to submit his report. The Commissioner submitted his report before the learned trial court. When the case was pending for petitioner's evidence, he filed an application under Order 6, Rule 17 CPC for seeking an amendment in the plaint. Through the amendment, the petitioner wanted to add prayer clause-A/(1) in the plaint. However, by order dated 27.3.2014, the learned trial court has dismissed the application. Hence, this petition before this court.

(3.) Mr. Gaurav Sharma Saraswat, the learned counsel for the petitioner, has vehemently contended that the learned Magistrate has rejected the application ostensibly on two grounds: firstly, that the additional relief prayed for is already covered by relief No.A mentioned in the original plaint. Secondly, on the ground of delay. However, the learned Judge was not justified in doing so as the only two grounds available to him for rejecting the application were whether any injustice to other side is caused, and whether the proposed amendment was unnecessary for determining the real question in controversy or not However, the learned Magistrate has not passed his order on either of these two grounds.