Himachal Pradesh High Court: Chander Bhusan Barowalia, J. contemplated a petition filed under Article 227 of Constitution of India for quashing and setting aside the order passed by Civil Judge of dismissing the application under Order 6 Rule 7 i.e. for ‘Amendment of Pleadings’ read with Section 151 of CPC.
Factual matrix of the case was that the plaintiff maintained a suit for permanent prohibitory injunction, and sought to restrain the defendants from interfering in any manner, taking forcible possession, installed the electric pole and also restrained them from putting the electrical wires and changing the nature of suit land.
The defendants contested that the electric poles erected on the side of the road near the boundary of the land of the plaintiffs and in the presence of the parties. It was submitted that the electric pole, which had been installed by the Electricity Department will not cause any hindrance to the land of the plaintiffs and after the electricity wire was attached, any obstruction or hindrance was not caused to the plaintiffs.
During the pendency of suit, plaintiffs maintained an application, under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure, for amendment of the plaint on the grounds that the defendants in connivance with each other forcibly erected poles and laid wires on it but, the said application was dismissed by the learned Civil Court.
Kulwant Chauhan, counsel for the petitioners submitted that the amendments were required to be allowed in order to properly adjudicate the case it was necessitated for the reason that after the filing of the present suit, defendants had erected the electric pole on the suit land and now, it was required to be added. In support of his arguments, he had relied upon the judgment in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 and contended that the application can be filed at any stage of the suit and the learned Courts are also required to allow the same, to meet the ends of justice. It was held that, “the same is not applicable to the facts and circumstances of the present case, a serious prejudice would be caused to the respondents in case, the application is allowed, at this stage, as the factum is with respect to the laying of electric lines under the Electricity Act and plaintiffs have waited for five years, even after having knowledge of erection of the electric pole in making the application for amendment.”
On the contrary, the counsel for the defendants Pawan Gautam and Suman Bhitmta, contested that petition was not maintainable, as the application was filed quite late before the learned Court below. He argued that as per the petitioner himself, electric pole erected in the year 2011 and now, the application had been filed, at the belated stage. He further argued that there was no case made out in favor of the petitioners to allow the present petition.
The Court found that the instant petition was maintained for an injunction and to restrain the defendants. It was further noted that the defendants had installed the pole and further an application for amendment was maintained in the year 2016. It was noted that though the application is filed after a long span of time but the question raised in the instant petition was different and the same cannot be allowed at the present stage of proceedings. It was held that “From the perusal of record which shows that the present suit has been maintained on 19.10.2011, at that time, defendants have started digging the pit for installation of electric poles and are threatening to install the same over the suit land. At that time, the averments of the plaintiff have been contested by defendants No.4 to 8 by filing written statement on 27.12.2011 by alleging that the electric poles were already erected in the month of May, 2011 i.e. on the road side near the boundary of the land of the plaintiff.”
If it was presumed that the electric poles were erected after the institution of the suit land in 2011, what prevented the plaintiff from moving an application for amendment of the plaint has not been mentioned by the applicant in his pleadings? It was settled law that the provisions of Order 6 Rule 17 have to be applied more liberally qua the written statement viz-a-viz plaint. Hence the petition was dismissed as the amendments were sought after 5 years and was sleeping over his rights.[Kishori Lal v. Darshan Kumar, 2019 SCC OnLine HP 1401, decided on 30-08-2019]
