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Awadh Bihari Gupta v. Prem Bihari - WRIT - C No. 24279 of 2006 [2006] RD-AH 8844 (3 May 2006)


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Court No. 23

Civil Misc. Writ Petition No. 24279 of 2006

Awadh Bihari Gupta Vs. Sri Prem Bihari

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the parties.

This petition challenges the order of the appellate court rejecting the petitioner's application for amendment in the plaint moved under Order 6 Rule 17 C.P.C.

The petitioner's suit is for permanent injunction to restrain the defendant over the joint possession of shop No. 131. The petitioner while instituting the suit side by side had moved an application for temporary injunction, which has been rejected by the trial court against which an appeal was preferred before the appellate court. During pendency of this appeal, the petitioner moved the application for amendment  under Order 6 Rule 17 C.P.C. for adding reliefs seeking decree for permanent injunction restraining the respondent from evicting the petitioner from the shop in question except in accordance with law and the other additional relief, which is sought to be incorporated is that the respondent be restrained from raising such construction in the shop and accommodation, which might amount to material alteration thus making the parties liable for eviction. The appellate court has rejected his prayer on the ground that addition of relief may change the nature of the suit.

Learned counsel contends that such ground for rejection of the amendment is wholly unjustifiable because both the reliefs proposed to be incorporated are of the same  nature as that of permanent injunction.

I do agree with the learned counsel that the reliefs, which are sought to be added are not such, which might change the nature of the suit, which is definitely a suit for permanent injunction but then the relief which is already claimed in the plaint restraining the defendant respondent from interfering into the lawful possession of the petitioner plaintiff in the disputed shop is such a broad based relief which also covers these two reliefs, which are sought to be added by the proposed amendment. The amendment so sought, thus, appears to be superfluous and is already covered under the existing reliefs claimed in the plaint. Therefore, there is absolutely no justification to allow such application for amendment. If it has been rejected by the appellate court otherwise also there is no use to revive that application by setting aside the appellate court's order.

The petition having no force is hereby dismissed.




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