Chattisgarh High Court
Smt. Snehlata Walter vs Ajay Mishra on 12 December, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
W.P(227) No.775 of 2022
Smt. Snehlata Walter W/o Shri Victor Walter Aged About 82 Years
Caste- Christian, R/o S. M. 61, Padmanabhpur, Durg, Tahsil And
District Durg, Chhattisgarh, District : Durg, Chhattisgarh
---- Petitioner
Versus
1. Ajay Mishra S/o Srhi B. L. Mishra Aged About 48 Years R/o
Kasaridih, Street No. 03, Near Nirala Chowk, Kasaridih, Tahsil
And District Drug, Chhattisgarh
2. Anup Mishra S/o Shri B.L. Mishra Aged About 50 Years R/o
Kasaridih, Street No. 03, Near Nirala Chowk, Kasaridih, Tahsil
And District Drug, District : Durg, Chhattisgarh
3. The State Of Chhattisgarh Through The District Collector, Durg,
Chhattisgarh ----Respondents
For the Petitioner: Shri Kshitij Sharma, Advocate.
For Respondent No.3/State: Shri Sudhir Sahu, PL.
Hon'ble Shri Justice Deepak Kumar Tiwari
Order on Board
12.12.2022
1. This Petition has been filed challenging the order dated
20.10.2022 passed by the Civil Judge, Clas-2, Durg, District Durg in
Civil Suit No.211-A/2015 whereby, the application filed under Order 6
Rule 17 CPC has been dismissed.
2. Shri Sharma, learned Counsel for the Petitioner submits the
Petitioner/Plaintiff has filed a Civil Suit for declaration of permanent
injunction as also for declaration of demarcation report dated
29.03.2015 as null and void. He further submits that during the
pendency of the suit, Defendants No.1 & 2 have encroached upon the
suit land and also constructed boundary wall and other
superstructure, therefore, considering the subsequent developments,
the Petitioner/Plaintiff had moved the said application for amendment
seeking relief for the possession and accordingly also sought
amendment in the clause of the Court fees, which has been
dismissed by the order impugned, which is not sustainable. He
further submits that the Petitioner had finally submitted a proposed
amendment in the relief clause and placed reliance on the judgment
rendered in the matter of Life Insurance Corporation of India vs.
Sanjeev Builders Private Limited and Another reported in 2022 SCC
OnLine SC 1128 and prays for allowing the Petition directing the trial
Court accordingly.
3. Heard learned Counsel for the Petitioner and perused the
documents annexed with the Petition carefully.
4. Considering the nature of relief sought, service of notice against
Respondents is dispensed with.
5. It is evident that initially the suit has been filed for declaration of
title and injunction and by way of proposed amendment, the
Petitioner/Plaintiff had specifically asserted that during pendency of
the suit, the Defendants have encroached upon the suit land and also
constructed superstructure.
6. Considering the submissions of Shri Sharma that the evidence
of Petitioner/Plaintiff has not yet begun and also further considering
the principles laid down in the matter of Life Insurance Corporation of
India vs. Sanjeev Builders Private Limited and Another (supra),
wherein, the principle of the amendment has been summarized that
all the amendments are to be allowed which are necessary for
determining the real question in controversy provided it does not
cause injustice or prejudice to the other side as also delay in applying
for amendment alone is not a ground to disallow the said application,
this Court is of the opinion that the proposed amendment is
necessary for determination of real question in controversy.
7. Accordingly, the prayer for amendment is allowed and the said
amendment be carried out subject to payment of cost of Rs.1,000/- to
Defendants No.1 & 2 as a pre-condition and the concerned Court also
shall provide a reasonable opportunity to the other side for
consequential amendment.
8. With the aforesaid observation, the instant Writ Petition stands
disposed of.
Sd/-
(Deepak Kumar Tiwari)
Judge
Priya.
