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

(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"

(4 of 7) [CW-9236/2019]

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

(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.

(6 of 7) [CW-9236/2019]

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.