J.K.Ranka, J. - (1.) THIS writ petition has been filed against the order dt. 15.9.2012 passed by the learned Additional Civil Judge (Sr. Div.) and Additional chief Metropolitan Magistrate No. 4, Jaipur Metropolitan, Jaipur in Civil Suit No. 4/2012, titled Dr. Sudhir Malhotra v. Ravindra Soral whereby the Court allowed the application filed under Order 6 Rule 17, CPC by the plaintiff for amendment of the plaint. Briefly stated the facts of the case are that plaintiff, Col. (Retd.) Ravindra Soral filed a suit for permanent injunction against defendant Dr. Sudhir Malhotra claiming himself to be owner of Flat No. 11/45, Malviya Nagar, Jaipur. It was the case of the plaintiff that the defendant who was the owner of the Flat No 11/47 situated just above the plaintiffs flat had without permission from the Rajasthan Housing Board and against bye laws had made certain material alteration in his flat owing to which the plaintiffs fiat was under imminent danger of falling. He further asserted in the plaint that the defendant was in the process of illegally constructing a room over the garage and had constructed a space for illegally using a terrace belonging to the plaintiff and hence the plaintiff sought the defendant to be restrained by a decree of permanent injunction as claimed in the plaint.
(2.) THE defendant submitted his written statement and refuted the allegations of the plaint and also preferred a counter claim. It was asserted by the defendant that the terrace belong to him and in accordance with rules of the Rajasthan Housing Board, the defendant had already completed the constructions, the defendant also mentioned other facts in his written statement but the same need not be dealt here for they are not necessary and germane for the resolution of the controversy involved in the present writ petition. Based on the pleadings and material available on record, issues were framed and the cross examination of the plaintiff by the defendant was completed and the case was fixed for further evidence on behalf of plaintiffs side. At this juncture, the plaintiff moved an application under Order 6 Rule 17 CPC for amendment in the plaint it was claimed in the application that the defendant, in defiance of the order dt. 8.2.2010, had constructed a room above the garage and a door of this room was also opened over the terrace of the plaintiff and hence para No. 8A was sought to be added in the plaint and in the relief clause an addition was sought to the effect that the room above the garage made by the plaintiff may also be ordered to be demolished.
(3.) THE defendant denied the allegations of such application moved by the plaintiff and asserted that the trial has already begun in the suit, therefore the plaintiff was not entitled to amend his suit in view of the amended provisions of Civil Procedure Code.;