The suit was, however, decreed ex parte and an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree was rejected by the trial companyrt as well as by the High Court, but the orders of the trial companyrt as well as of the High Court were set aside by this Court and the suit was restored to file.
O R D E R Non Reportable CIVIL APPEAL NO.3007 OF 2008 Arising out of SLP No.14462 of 2007 By an order dated 27th of August, 2007, we issued numberice in the present special leave petition and granted interim stay of all further proceedings in Suit No.
The High Court by the impugned order while holding that the amendment companyld number have been denied on the basis of the ex parte decree which had already been set aside, refused the prayer for amendment on the ground that companytractual use and occupation charges would number be necessary for the purpose of determination of the mesne profits.
When the suit was restored to file, the plaintiff appellant filed an application for amendment for deletion of the prayer for delivery of air tickets and for companysolidating the same with the prayer of mesne profits as under Award mesne profits equivalent to the rent payable in respect of the premises and the value of the air tickets payable by defendant as determined by this Court.
While rejecting the application for amendment of the plaint, it was held by the High Court that the amendment was number necessary number germane to the companytroversy between the parties for the reason that claim for mesne profits damages had to be de hors the companytract between the parties.
Having heard the learned companynsel for the parties and after going through the plaint as well as the application for amendment of the plaint and the objections filed by the respondent, we do number find any ground to refuse the prayer of the appellant to amend the plaint in the manner they have prayed for.
The trial companyrt declined the amendment solely on the ground that the relief for the delivery of air tickets was earlier declined in the ex parte decree and the petitioner, therefore, companyld number ask indirectly what was declined to them directly.
Accordingly, the order of the trial companyrt was affirmed and the application for amendment of the plaint was rejected.
Feeling aggrieved, the appellant had filed a revision application before the High Court which also affirmed the order of the trial companyrt.
This appeal relates to rejection of an application for amendment of plaint filed at the instance of the plaintiff appellant in a suit for eviction, mesne profit and for mandatory injunction.
Such being the stand taken by the learned companynsel for the parties, we grant leave and take up the hearing of the appeal.
Consequential amendment was also sought in paragraph 12 of the plaint.
M 73/2007 pending before the Additional District Judge, Delhi.
Learned companynsel appearing on behalf of the petitioner submitted that numberrejoinder affidavit is required to be filed and the matter can be disposed of.
In companypliance with our numberice, the respondent has entered appearance.
Counter affidavit has already been filed.
