Om Prakash Dikshit vs Rajender Kr. Khandelwal
1992 Latest Caselaw 444 Del

JUDGMENT

Santosh Duggal, J.

(1) By a consolidated order passed on 22nd December, 1990, the learned Senior Sub Judge disposed of two applications filed by the petitioner, one of which was under the provisions of Order 6 Rule 17 Civil Procedure Code and the other under Order 39 Rules 1 & 2 CPC.

(2) The plaintiff had brought a suit on the ground that he was Pujari of the Sankat Mochan Hanuman Mandir for the last about 50 years and was residing with his family members in a room situated in the precincts of the said Mandir. It was further pleaded that he had been appointed Pujari by the forefathers of the present respondent, who had built this temple. There is an added plea that one other room was built for the purpose of Dharamshala or. for other religious purposes. It is further contended in the same plaint that the land had been acquired by Delhi Administration, but this piece of land was left out for the purpose of the temple, and as such the respondent has no right or interest in the same. Alleging that recently the respondent started constructing a wall in the open space with a view to put an iron gate and also proposed to construct some rooms in the open space, an injunction order was sought against the proposed activity to the effect that the respondent be restrained from enclosing the open space, as well as putting any further construction thereon.

(3) Another application was filed seeking amendment of the plaint in order to take some additional pleas which are not extracted in the impugned order, but the application was dismissed on the view that there was apparent contradiction in the stand taken by the petitioner in the original plaint vis-a-vis the pleas sought to be introduced by way of amendment and they do not seem to be borne out by any evidence on record and that rather the documents showed to the contrary. Opining that the plaintiff cannot make out an absolutely new cause of action in contradiction to the original claim, the amendment application was dismissed which order has been upheld by the appellate Court.

(4) Although, the applications were dismissed by a consolidated order but, two Civil revision petition Nos. 74 and 199 of 1991 have been filed for the reason that so far as part of the order dismissing the application under Order 39 Rules 1 & 2 Civil Procedure Code is concerned, the first appeal lies to the Senior Sub Judge, which remedy was availed of but unsuccessfully and thereafter this revision petition, (No. 74 of 1991), was filed. Another revision petition being Civil Revision No. 199 of 1991 has been filed directly against that part of the order whereby the prayer of the petitioner seeking amendment of the plaint was disallowed.

(5) I propose to dispose of both the revision petitions by a common order.

(6) After having heard parties Counsel, I am of my considered view that the Trial Court erred in entering into detailed merits of the facts sought to be introduced by way of amendment on the basis of the documents filed, in comparison to the original plaint. Pleadings are not yet complete in the case and it was at a very early stage. It is well settled that even parties can take contradictory pleas, unless there is a statutory bar such as that of limitation or any other similar valuable right has accrued to the opposite party. This is not the case here. The plaintiff has to establish his case, and the defendant/respondent had ample opportunity to rebut the same. To that extent, I find manifest error in the view taken by the Trial Court while dismissing the application under Order 6 Rule 17 CPC. That part of the order is, therefore, liable to be set aside, and the revision petition, being No. 199 of 1991, is allowed.

(7) In so far as the application under Order 39 Rules 1 & 2 Civil Procedure Code are concerned, the two Courts have concurrently taken the view that the petitioner had, on the basis of the plaint, that was before the Court and the documents filed, had not been able to show any prima fade right in the open space as he cannot preclude the owners of the properly from enclosing the same or undertaking activity on the said property. There is no dispute at this stage that the petitioner continues to be in occupation of one room which was given to him as Pujari of the temple. There is no prima fade evidence that the shed was also there when petitioner was inducted as a Pujari of the temple. He has also no right in respect of the other room which he alleges to have been earmarked for Dharamshala. On these facts, as existed before the Court, I am of my considered view that the application under Order 39 Rules I and 2 Civil Procedure Code was rightly dismissed.

(8) I therefore, do not find any merit in this revision petition, (No. 74 of 1991), and the same is. therefore, dismissed.

(9) It is, however, recorded that any observation made herein shall not affect the merits of the case or respective contentions of the parties, and further that in case any light exists for making fresh application under Order 39 Rule I and 2 Civil Procedure Code on the basis of the amended plaint, the plaintiff shall be at liberty to make an application but not on existing facts as covered by the earlier application under Order 39 Rules I and 2 CPC.

(10) With these directions, both the revision petitions (C.R. No. 74 & 199 of 1991) stated disposed of. No order as to costs.

(11) Records of the cases be sent back immediately so that the case can proceed. The next date in the case is stated to be 14th September, 1992. Both the parties shall appear personally or through Counsel on the date fixed before the Trial Court, so that further proceedings can take place.