RAMJI LAL Vs. CIVIL JUDGE

JUDGEMENT

(1.) The petitioner by way of this writ petition assails the order dated 27.8.2009 passed by Civil Judge (Jr. Division), Bamanwas Distt.Sawai Madhopur (Raj.) whereby the application moved under Order 6 Rule 17 CPC has been rejected in a suit preferred by the petitioner-plaintiff for permanent injunction.

(2.) Learned Counsel appearing for the petitioner submits that earlier a suit seeking permanent injunction was filed by the respondents-defendants bearing No.131/1992 as against the petitioner, the same came to be dismissed by the trial Court on 7.11.2001 and as per the judgment the possession on the property was held to be of the petitioner and the submissions of the respondents that the property was handed over to them, was not accepted by the concerned trial Court, the said judgment came to be upheld in first appeal as well as second appeal before this Court whereafter the petitioner apprehending of being dispossessed had preferred the present suit seeking permanent injunction. During the course of pendency of the suit, the respondents forcibly dispossessed the petitioner from premises and, therefore, an application was moved seeking amendment under Order 6 Rule 17 CPC claiming mandatory injunction. Learned Counsel submits that trial Court has fallen in error in rejecting his application treating that a new cause of action has arisen.

(3.) Per contra, learned Counsel appearing for the respondents submits that in the previous suit preferred by the respondents, Commissioner report mentions of the respondents having possession on the property and a temporary injunction was also granted in his favour in the suit preferred by them. Thus, the petitioner was never in possession of the property and, therefore, the amendment which they are now seeking would be a change of the nature of the suit. He further submits that suit was preferred on 5.1.2017 and the incident is said to have been occurred between 14 and 16 January, 2017 while the amendment sought is on 30.07.2008. Thus, no explanation has come forward for the delay in filing the application under Order 6 Rule 17 CPC, and therefore, the amendment ought not to be allowed. Learned Counsel relies on the judgment passed by this Court reported in 2015 (1) DNJ (Raj.) 431- Meera Ben (Smt.) Vs. Amritlal & Anr. wherein the similar circumstances on account of delay the application under Order 6 Rule 17 CPC was disallowed and upheld by this Court.