C.R. No. 3901 of 2012. Case: Gurdev Singh Vs Tarsem Singh. High Court of Punjab (India)

Case NumberC.R. No. 3901 of 2012
CounselFor Appellant: Sarju Puri, Advocate and For Respondents: Vijay Lath, Advocate
JudgesDaya Chaudhary, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order VI Rule 17; Order XXIII Rule 1; Constitution of India - Article 227
Judgement DateMarch 07, 2017
CourtHigh Court of Punjab (India)

Judgment:

Daya Chaudhary, J.

1. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 11.5.2012 (Annexure P-10) passed by Additional Civil Judge (Senior Division), SBS Nagar, whereby, application of the respondent-plaintiff under Order 6 Rule 17 CPC for amendment of the plaint has been allowed.

2. Briefly, the facts of the case as made out in the present petition, are that respondent-plaintiff filed a suit for permanent injunction restraining the petitioner-defendant from encroaching upon the Rasta bearing Khewat No. 311, Khatauni No. 546, Khasra No. 4416/1974 (0-18) situated in the area of village Chakdana, Tehsil and District Nawanshahar. Said suit was contested by the petitioner-defendant and written statement was filed. During pendency of the aforesaid suit, respondent-plaintiff filed another suit for mandatory injunction to direct the petitioner-defendant to remove his structure and possession from the encroached property of the respondent-plaintiff as mentioned in fard jamabandi for the year 2000-2001, Khewat No. 67, Khatauni No. 92, Khasra No. 4412 (7-1). Thereafter on 22.12.2016, the earlier suit No. 634 of 2004 was withdrawn by the respondent-plaintiff. The petitioner-defendant filed reply to the subsequent suit. During pendency of the second suit, respondent-plaintiff filed an application under Order 23 Rule 1 CPC for withdrawal of the suit with liberty to file afresh on the same cause of action. Thereafter, on 25.9.2009 the application under Order 23 Rule 1 CPC was withdrawn by the respondent-plaintiff on the ground that he did not want to pursue his application and another application under Order 6 Rule 17 CPC was moved for amendment of the plaint seeking to incorporate the relief of possession in the suit. Reply to the application was filed but the same was allowed vide order dated 11.5.2012, which is subject matter of challenge in the present revision petition.

3. Learned counsel for the petitioner contends that while allowing the application of the respondent-plaintiff, the trial Court has not taken into consideration that the previous suit of the plaintiff, which was also based on the same cause of action qua the same suit property has already been dismissed as withdrawn on 22.12.2006. Subsequently the present suit was filed during the pendency of the earlier suit on the same cause of action, whereas, the subsequent suit was not maintainable. Learned counsel further contends that the trial Court has wrongly allowed the application of the respondent-plaintiff for...

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