Punjab-Haryana High Court
Imperial Hotel And Restaurants Pvt. Ltd vs M/S. J.M.P. Enterprises on 30 July, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CIVIL REVISION NO.4343 OF 2010
DATE OF DECISION : 30th JULY, 2012
Imperial Hotel and Restaurants Pvt. Ltd.
.... Petitioner
Versus
M/s. J.M.P. Enterprises
.... Respondent
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Ramandeep, Advocate for
Mr. R. S. Bajaj, Advocate for the petitioner.
Mr. Sandeep Wadhawan, Advocate for the respondent.
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L. N. MITTAL, J. (ORAL)
Aggreived by order dated 30.04.2010 Annexure P-5 passed by Learned Civil Judge (Junior Division), Jalandhar thereby dismissing application Annexure P-4 moved by plaintiff-petitioner for amendment of plaint, the plaintiff has filed this revision petition under Article 227 of the Constitution of India to challenge the said order.
Plaintiff-petitioner has filed suit against defendant-respondent restraining the defendant from blocking the disputed passage inter alia alleging that the plaintiff and its tenants have been using the disputed passage.
In amendment application Annexure P-4, the plaintiff alleged that during the pendency of the suit, the defendant stated that it had sold the property and even some unknown persons came to the plaintiff threatening to close the openings abutting on Northern side. Accordingly, the plaintiff by CR No.4343 of 2010 -2- way of amendment wants to plead that the defendant was alleging that it had sold the property during pendency of the suit and that defendant is bound to disclose the alleged purchaser and the shops were constructed by the plaintiff abbuting Northern side of the property with consent of defendant and the shops have no access from any other side and if the defendant or its successor- in-interest blocked the disputed common passage, the plaintiff's shops would become useless. Disputed common passage is the only passage for the shops of the plaintiff. It is also sought to be pleaded that the plaintiff and its tenants have easmentary right to use the passage as easement of necessity.
The defendant-respondent resisted the amendment application and pleaded that out of its property, defendant had sold part of the property to M/s. 3-S Infrastructure Private Limited, Chandigarh on 30.08.2006 i.e. before filing of the suit and the plaintiff was in knowledge of the said fact. Defendant and its purchaser have every right to deal with their property including the alleged passage. Other averments of the plaintiff were denied.
Learned trial court vide impugned order Annexure P-5 dismissed the plaintiff's application for amendment of plaint. Feeling aggrieved, plaintiff has filed this revision petition.
I have heard learned counsel for the parties and perused the case file.
Notice of motion in the revision petition was issued to the limited extent of amending the plaint to plead sale part of the property by defendant- respondent, which was a fact admitted by the defendant. However, even the said amendment of plaint cannot be allowed because the plaintiff by amendment of plaint did not even seek to implead the purchaser of part of the CR No.4343 of 2010 -3- property from the defendant-respondent. On the other hand, according to defendant-respondent, the said sale had been made prior to the filing of the suit and this fact has not been controverted by the plaintiff. Thus the sale was not made during pendency of the suit. Even otherwise, without impleading purchaser, mere pleading of the fact that part of the property has been sold by defendant would have no meaning or bearing on the suit. In fact, the oblique motive of the plaintiff by seeking proposed amendment of plaint was to introduce completely new case of right of easement of necessity which was not pleaded in the original plaint. The same cannot be allowed by amendment of plaint after commencement of trial.
For the reasons aforesaid, I find no infirmity, much less illegality, perversity or jurisdictional error in impugned order of the trial Court so as to warrant interference by this court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The revision petition is meritless and is accordingly dismissed.
However, nothing observed hereinbefore shall have any bearing on merits of the suit.
30th July, 2012 (L. N. MITTAL)
'raj' JUDGE