Rajesh Bindal, J. - (1.) THE challenge in the present petition is to the order dated January 2, 2007 passed by the learned Civil Judge (Junior Division), Nawanshahar, whereby the application for amendment of the suit, filed by the petitioner/plaintiff, was dismissed.
(2.) BRIEFLY , the facts are that the petitioner/plaintiff filed a suit for permanent injunction restraining the respondent/defendant No. .l from demolishing khala/drain, shown in the site plan annexed with the plaint, or from changing the flow and course of the same. In an application filed under Order 39 Rules 1 & 2 CPC, the learned trial Court, vide order dated September 9, 2005, restrained the respondent/defendant No. 1 from demolishing or changing the flow in the existing drain, over the spot. Thereafter, the trial of the suit continued. However, as per the allegations of the petitioner/plaintiff, during the period he was away to New Zealand, the respondent/defendant No. 1 demolished the khala/drain and as consequences thereof, the petitioner/plaintiff moved an application for amendment of the plaint for seeking relief of mandatory injunction. The necessity for filing of the application for amendment of the plaint arose as the subsequent events have taken place during the pendency of the suit before the Court. However, the learned trial Court did not find favour with the prayer made by the petitioner/plaintiff and dismissed the application, vide impugned order dated January 2, 2007. The primary reason for dismissal of the application was that even the issues had been framed; the Gram Panchayat, in fact, had already constructed the pucca drain, thereafter, even the evidence has been led by the plaintiff and that no date of demolition of the khala/drain was furnished. Learned counsel for the petitioner submitted that in the present case, the reasons mentioned by the learned trial Court, for rejecting the prayer made by the petitioner/plaintiff for amendment of the plaint, are totally imaginary and baseless. While passing the order in the application filed by the petitioner/plaintiff for interim relief under Order 39 Rules 1 & 2 CPC, the entire material was considered and it was directed that respondent No. l is restrained from demolishing or changing the flow in the existing drain, over the spot. Meaning thereby that the drain was in existence on the date when the interim directions were given by the learned trial Court. It was, thereafter, on account of demolition of the drain, during the period when the petitioner/plaintiff was out of Country, the need of amendment of the plaint arose for seeking the relief of mandatory injunction as well. It is submitted that the law for amendment of the plaint is quite liberal as has been held by Hon'ble the Supreme Court in Rajesh Kumar Aggarwal & Others v. K.K. Modi & Others,, 2006 (2) Apex Court Judgments 583 (S.C.) :, 2006 (3) Civil Court Cases 57 (S.C.) :, 2006 (2) RCR (Civil) 577.
(3.) ON the other hand, learned counsel for the respondent/defendant No. l submitted that in fact, the prayer made in the suit filed by the petitioner/plaintiff has become infructuous as in terms of the stand taken by him in the written statement filed, the drain had already been demolished by the Gram Panchayat and further the petitioner/ plaintiff having not furnished the date on which the alleged demolition took place, the amendment application was not bonafides. He has relied upon Ajendraprasadji N. Pande & Another v. Swami Keshavprakeshdasji N. & Others, : 2007 (1) Apex Court Judgments 3 76 (S.C.) : 200 7 (1) Civil Court Cases 500 (S.C.) : AIR 200 7 SC 806; Sukhdev Singh v. Bal Krishan, 2005 (1) RCR (Civil) 459 (P&H); Ramesh Ramanujam & Others v. Varudammul & Others, 2005 (2) RCR (Civil) 761 (Mad.), and Ashok Chandra Srivastava v. Master Ashish Kumar alias Banti & Others, 2005 (1) RCR(Civil) 429 (Allah.), to submit that after the trial had commenced, the amendment of the plaint in question could not possibly be allowed as the fact regarding demolition of drain was well within the knowledge of the petitioner/plaintiff before the trial had begun with the framing of issues.;