Rajasthan High Court - Jodhpur
The Executive Engineer ( C And M) vs Smt. Sushila Devi on 16 October, 2024
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
S.B. Civil Writ Petition No. 9236/2019
1. The Executive Engineer (C And M), Rajasthan Rajya Vidyut
Prasaran Nigam Limited, Merta City, Tehsil Merta, District Nagaur
(Raj.)
2. The Assistant Engineer (C & M), Rajasthan Rajya Vidyut
Prasaran Nigam Limited, Merta City, Tehsil Merta, District Nagaur
(Raj.)
3. The Junior Engineer (C & M), Rajasthan Rajya Vidyut Prasaran
Nigam Limited, Merta City, Tehsil Merta, District Nagaur (Raj.)
4. The Superintending Engineer (C & M), Rajasthan Rajya Vidyut
Prasaran Nigam Limited, Merta City, Tehsil Merta, District Nagaur
(Raj.)
(All through the Officer Incharge of the case Raju Lal Meena S/o
Shri Ramdhan Meena, Aged About 50 Years, Presently working
as Executive Engineer (T & C), RRVPNL, Merta City, District
Nagaur (Raj.))
----Petitioners
Versus
1. Smt. Sushila Devi W/o Shri Omprakash Kangasiya, R/o
Agrasen Colony, Chenar, Tehsil and District Nagaur (Raj.)
2. The State of Rajasthan Through District Collector, Naguar
(Raj.)
----Respondents
Connected With
S.B. Civil Writ Petition No. 9240/2019
1. The Executive Engineer (C And M), Rajasthan Rajya Vidyut
Prasaran Nigam Limited, Merta City, Tehsil Merta, District Nagaur
(Raj.)
2. The Assistant Engineer (C & M), Rajasthan Rajya Vidyut
Prasaran Nigam Limited, Merta City, Tehsil Merta, District Nagaur
(Raj.)
3. The Junior Engineer (C & M), Rajasthan Rajya Vidyut Prasaran
Nigam Limited, Merta City, Tehsil Merta, District Nagaur (Raj.)
4. The Superintending Engineer (C & M), Rajasthan Rajya Vidyut
Prasaran Nigam Limited, Merta City, Tehsil Merta, District Nagaur
(Raj.)
(All through the Officer Incharge of the case Raju Lal Meena S/o
Shri Ramdhan Meena, Aged About 50 Years, Presently working
as Executive Engineer (T & C), RRVPNL, Merta City, District
Nagaur (Raj.))
----Petitioners
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Versus
1. Smt. Sushila Devi W/o Shri Omprakash Kangasiya, R/o
Agrasen Colony, Chenar, Tehsil and District Nagaur (Raj.)
2. The State of Rajasthan Through District Collector, Naguar
(Raj.)
----Respondents
For Petitioner(s) : Mr. Chetan Prakash Soni
For Respondent(s) : Mr. Deen Dayal Chitlangi
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order 16/10/2024 By way of filing the present civil writ petitions, the petitioners have challenged the order dated 28.05.2019 (Annexure.6) passed by the learned Civil Judge and Judicial Magistrate, Nagaur in Civil Original Case No.05/2010 (CIS No.6 D6/14), whereby the applications filed under Order 6 Rule 17 C.P.C. and Order 8 Rule 1A C.P.C. have been rejected.
2. The respondent-plaintiff in the year 2010 had filed a suit for mandatory injunction before the learned trial Court stating inter- alia that the respondent-plaintiff had purchased plot Nos.3 & 4 at Agrasen Colony, Chenar, Nagaur. The plaintiff got the 1 st Floor of her house constructed in the year 2006. At the time of construction of 1st Floor, a single line of 132 KV was passing by the north-western side of the house at a distance of 6 meters and approximately 12 meters in the north-eastern side. In the plaint it was further stated that on 28.01.2010, the petitioners- defendants installed a double line of 132 KV approximately 5 feet away from the house. This electricity line being a high voltage line is dangerous for the family members of the respondent-plaintiff. In (Downloaded on 16/10/2024 at 09:45:27 PM) (3 of 7) [CW-9236/2019] the suit filed by the respondent-plaintiff it was been prayed that the double line of 132 KV installed 5 feet away from her residential premises may be removed and further no line of 132 KV be installed in less than 6 meter radius of her house.
3. The petitioners-defendants after service of notice appeared before the learned trial Court and also filed a written statement in the month of April, 2010.
4. The learned trial Court on 13.07.2011 after hearing both the parties, decided the application for temporary injunction filed with the suit by the respondent-plaintiff and ordered that the electricity line passing near her house may be covered with plastic cover which are not a conductor of electricity. The order dated 13.07.2011 passed by the learned trial Court came to be challenged by the petitioners-defendants before the Court of Additional District Judge No.2, Nagaur by way of an appeal under Order 41 Rule 1 read with Order 43 Rule 1 C.P.C.
5. The appeal preferred by the petitioners-defendants came to be partly allowed by the appellate Court vide order dated 03.07.2015. The operative portion of the order dated 03.07.2015 is reproduced below for ready reference:-
"vr% vihy vihykUV vkaf"kd :i ls Lohdkj dh tkdj vihykUV izfroknhx.k dks funsZ"k fn;k tkrk gS fd og fu;ekuqlkj fo?kqr pkydksa ij jcj vkSj IykfLVd p<kus ckcr tks Mcy ykbZu Mkyh x;h gS] oknhuh ds edku ds ikl dksbZ tugkfu ugha gks] bl ckcr rduhf"k;u fo"ks'kK dh fjiksVZ izkIr djs vkSj ;fn rduhf"k;u fo"ks'kK dh fjiksVZ izkIr gksus ij mUgsa cnyk tkuk laHko gks rks [kpsZ dk rdehuk cukdj v/khuLFk U;k;ky; ds le{k izLrqr djrs gqos ykbZuksa dk dk;Z vihyh; vkns"k dh vuqikyuk esa fd;k tkosA ftlds gksus okys O;; ds laca/k esa vkns"k ewy okn esa fn;k tkosxkA mldk ;fn rduhdh iz;Zos{k.k dk;Z lEHko ugha gks rks rn~uqlkj leLr rF;ksa dks vafdr djrs gqos v/khuLFk U;k;ky; ds le{k viuk vH;kosnu vkns"k 39 fu;e 4 lhihlh ds rgr djsaxsA rn~uqlkj vihy fuLrkfjr ntZ gks o ewy vfHkys[k e; vkns"k dh izfr v/khuLFk U;k;ky; dks okil ykSVk;k tkosA"
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6. Learned counsel for the petitioners-defendants submitted that after making due compliance of the directions issued by the appellate Court, the petitioners-defendants filed applications for seeking amendment in the written statement by adding para No.7
-A wherein it was stated that the petitioners-defendants have covered the electricity lines with silicon rubber and insulator on 23.05.2017 as a consequence whereof, the distance between the house of the respondent-plaintiff and the electricity line amounted to 4.17 meters only. Further, vide another application, the document relating to demand of insulators and stock register dated 23.05.2017 and letter dated 27.02.2019 etc. were also requested to be taken on record. Learned counsel submitted that the learned trial Court while rejecting the applications filed on behalf of the petitioners-defendants failed to consider that the amendment which is sought in the written statement would definitely affect the final outcome of the suit as it is important to be brought on record that the silicon rubber and insulators have already been installed on 23.05.2017. It was further submitted that the learned trial Court ought not to have rejected the application filed under Order 8 Rule 1A C.P.C. as the documents sought to be produced on record to establish that when the safety measures have already been taken up by the defendants, then the suit itself had become infructuous. Learned counsel vehemently submitted that since the nature of suit itself will not be changed by the proposed amendment and the proposed amendment is (Downloaded on 16/10/2024 at 09:45:27 PM) (5 of 7) [CW-9236/2019] necessary to decide the real dispute between the parties, the applications seeking amendment of pleadings ought not to have been rejected. On these counts, the learned counsel implored the Court to set aside the order impugned dated 28.05.2019 passed by the learned trial Court. Learned counsel for the petitioners- defendants has placed reliance on the following judgments:-
(i) "Dinesh Kumar Agarwal v. Shyam Singh Shekhawat"; S.B. C.W.P. No.34/2018 decided by Rajasthan High Court, at Jaipur Bench.
(ii) "Nagraj Jain & Anr. v. Kesarimal Jain"; S.B. C.W.P. No.15354/2017 decided by Rajasthan High Court, at Jodhpur Bench.
(iii) "Saibinnisha v. Abdul Vahab"; (2018)3 CCC 715 (Kerala)
7. Per contra, the learned counsel for the respondents-plaintiffs submitted that the well reasoned order dated 28.05.2019 passed by the learned trial Court does not call for any interference by this Court. It was submitted that the applications under Order 8 Rule 1A C.P.C. have been filed on 02.03.2019 i.e. after the commencement of trial and that too after completion of respondent-plaintiff's evidence, only with a view to delay the final outcome of the suit. It was submitted that on behalf of the petitioners-defendants, three witnesses viz. D.W.1, D.W.2 & D.W.3 have already been examined before the learned trial Court on 07.08.2013, 04.05.2018 and 03.08.2018. It was thus prayed that the present writ petitions may be dismissed.
8. Heard learned counsel for the parties at Bar. (Downloaded on 16/10/2024 at 09:45:27 PM)
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9. In the present case, the petitioners-defendants filed the applications under Order 8 Rule 1A C.P.C. when the evidence of plaintiff and defendants had already been examined before the learned trial Court. The proviso to Order 6 Rule 17 of the C.P.C.
states that the amendment of the pleading shall not be allowed when the trial of the suit has already commenced. The trial is deemed to commence when the issues are settled and the case is set down for recording of the evidence (refer "Vidyabai v. Padmalatha": AIR (2009) SC 1433). The entire object of the aforesaid amendment is to ensure that unnecessary delay is not caused in filing the application which would ultimately the suit itself. However, in the cases where the parties to the proceeding are able to satisfy the Court that inspite of due diligence they could not raise the issue before the commencement of trial and the Court is satisfied with their explanation, amendment can be allowed even after commencement of the trial.
10. The record of the case indicates that the petitioners- defendants have filed the application for amendment and for production of documents to bring on record the works executed by them pursuant to the directions issued by the appellate Court in the order dated 03.07.2015 while deciding the appeal preferred against the order passed by the learned trial Court dated 13.07.2011 on the application filed for temporary injunction. The object of grant of interim injunction is to temporarily grant relief to a party when the immediate resolution of the main case is likely to take time.
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11. In the opinion of this Court, any work executed in
compliance of the interim directions issued by the Court shall not prejudice the ultimate relief claimed by the plaintiff-respondent. Further, no satisfactory explanation has been furnished as to why the applications have been filed after commencement of the trial and recording of the evidences of both the parties. Therefore, if the petitioners-defendants are granted the relief by allowing the applications filed under Order 8 Rule 1 C.P.C. the same would only cause delay in disposal of the case which has reached to the final stage after more than 10 years of its institution.
12. Consequently, this Court finds no merit in these writ petitions. The same are, therefore, dismissed.
13. No order as to costs.
14. A copy of this order be placed in each file.
(KULDEEP MATHUR),J 799-800-himanshu/-
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