Himachal Pradesh High CourtJagdish Chand Sharma vs Nand Lal on 16 April, 2018Author:Chander Bhusan BarowaliaBench:Chander Bhusan BarowaliaIN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                         CMPMO No.431 of 2017.Reserved on : 4.4.2018..Date of Decision : 16.4.2018.Jagdish Chand Sharma.                                                 ....Petitioner.
                                               Versus





           Nand Lal                                                              ...Respondent.
           CoramThe Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.Whether approved for reporting?1                  Yes.





           For the petitioner           :       Mr. Tarun Kumar Sharma, Advocate.
            For the respondent          :       Mr. Ajay Sharma, Advocate.

               Chander Bhusan Barowalia, Judge.The present petition is maintained by the petitioner,

               underArticle 227of the Constitution of India, for quashing and

               setting the impugned order, dated 23.5.2017, passed by learned


               Civil Judge (Junior Division) Court No.IV, Hamirpur, District

               Hamirpur, H.P, in CMA No.368 of 2016, in Civil Suit No.39 of 2013




               titledNand Lal vs. Jagdish Chand Sharma, whereby the learned





               Court      below,       has      dismissed        the     application       of      the

               petitioner/defendant filed, under Order 6 Rule 17 read withsection





               151of the Code of Civil Procedure.2.           Brief facts giving rise to the present petition are that the

               respondent/plaintiff (hereinafter referred to as the 'plaintiff')

               maintained a suit forSpecific Relief Actand Permanent Prohibitory

               Injunction restraining the petitioner/defendant (hereinafter referred1Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 17/04/2018 23:48:01 :::HCHP2to as the 'defendant') from interfering and raising any type of

    construction in the suit land and changing the nature of same

    comprised in Khata No.182, Khatauni No.202, Khasra No.560, area




                                                                 .9 marlas, situated in Tika Lag, Tappa Mewa, Tehsil Bhoranj, District

    Solan, Himachal Pradesh (hereinafter referred to as 'suit land') and





    in case, the defendant succeeds in raising forcible construction over

    the suit land, then suit for possession by way of demolition of such





    construction.   During the pendency of suit, petitioner/defendant

    moved an application, underOrder 6 Rule 17 of the Code of Civil

    Procedurefor amendment of the written statement, but the learned

    Court below dismissed the said application, vide order, dated

    23.5.2017. Hence, the present petition.3.        Reply to the petition has been filed and it has been



    averred that initially, the case was maintained before the learned

    Court below on 8.3.2013, written statement was filed by the




    defendant on 13.5.2013 claiming himself to be owner of the suit





    land, which adjoins the suit land. Issues were framed on 6.11.2013

    and the parties led their respective evidence and thereafter, the





    case was fixed for arguments, but on the said date, application for

    amendment of written statement was filed. By way of amendment,

    the very nature of defence, as was taken in the written statement

    by the defendant claiming himself to be owner of the suit land. So,::: Downloaded on - 17/04/2018 23:48:01 :::HCHP3the present petition has been filed just to delay the matter and

    thus, is liable to be dismissed.4.        Learned counsel appearing on behalf of the petitioner has




                                                                  .argued that to dispense with the substantial justice inter se the

    parties, application underOrder 6 Rule 17 of the Code of Civil





    Procedure, is required to be allowed. He has further argued that

    the learned Court below has failed to exercise its jurisdiction and





    thus, the present petition may be allowed.5.        On the other hand, Mr. Ajay Sharma, learned counsel

    appearing on behalf of the respondent has strenuously argued that

    the impugned order passed by the learned Court below is just,

    reasoned and as per law. He has further argued that the petitioner

    is now making a new case, which is not permitted and so, the



    learned Court below has rightly dismissed the application and prays

    for dismissal of the petition.6.        To appreciate the arguments of learned counsel for the





    parties, I have gone through the record in detail.7.            From the perusal of record, it is clear that the plaintiff





    at this stage, wants to amend his plaint by taking a plea that he has

    purchased the vacant land alongwith house from one Shri Hans Raj

    son of Shri Kirlu Ram, vide agreement, dated 26.1.1992, for a

    consideration of `15,000/-. Learned counsel for the respondent has

    submitted that it will be a denovo trial and setting up of a new::: Downloaded on - 17/04/2018 23:48:01 :::HCHP4case.   In the written statement, the petitioner/defendant has

    specifically stated that he is owner of the suit land meaning thereby

    that he is owner of the land, but though not specifically averred by




                                                                  .adding words that he has purchased the land from one Shri Hans

    Raj son of Shri Kirlu Ram. So, this Court finds that no new case is





    going to be set up and amendment is only explaining the contents

    of written statement in detail, the amendment as sought for, is





    necessary for adjudicating the lis inter se the parties and it will help

    for a proper adjudication of the present case.        At this moment,

    taking into consideration these facts, this Court comes to the

    conclusion that amendment as sought for is necessary and the

    same cannot be discarded for the reason that the application was

    not maintained immediately after filing of the written statement.8.         The net result of the aforesaid discussion is that the

    learned Court below should have allowed the amendment, but by




    not allowing it, the learned Court below has failed to exercise its





    jurisdiction vested in it. Accordingly, the present petition is allowed

    and the impugned order dated 23.5.2017, passed by the learned





    Court below is set aside. So, it is ordered that the amended written

    statement be taken on record and thereafter, the learned Court

    below will proceed with the matter in accordance with law. Parties,

    through their learned counsel, are directed to appear before the

    learned Court below on     16th May, 2018.        However, the parties::: Downloaded on - 17/04/2018 23:48:01 :::HCHP5are left to bear their own costs.     Ordered accordingly.       Pending

      applications, if any, shall also stands disposed of..(Chander Bhusan Barowalia)
    16th April, 2018.                         Judge
    (CS)





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