IN THE HIGH COURT OF JJDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Writ Petition No.9331 of 2006. Balkishan son of Shri Ram Vilas and Others Versus The Additional District Judge No.2, Kishangarh Bas, Camp Tijara, District Alwar and Another Date of Order :::: 30/07/2009 Hon'ble Mr. Justice Dalip Singh Mr. R.K. Mathur, Counsel for the Petitioners Mr. Brij Sharma, Advocate for Mr. R.B. Mathur, Counsel for the Respondents
Per Court :
Heard learned counsel for the parties.
This writ petition has been preferred against the order dated 22.07.2006 (Annexure-3) by which the application submitted by the plaintiff non-petitioner No.2 for amendment in the plaint was allowed by the learned Appellate Court during the pendency of the appeal.
The submission of the learned counsel for the petitioners is that the learned Appellate Court has allowed the application without assigning any reason and also not taking into account the contents of the reply submitted by the defendants.
The suit was filed by the plaintiff for permanent injunction and it is contended by the learned counsel for the defendant-petitioners that the amendment was sought to the effect by the plaintiff that during the pendency of the suit/ appeal the defendant-petitioners took forcible possession of the premises, in dispute and raised constructions thereon and further that he may be allowed to incorporate the above facts in the plaint and seek relief of possession over the property.
The learned counsel for the defendant-petitioners contended by relying upon the reply to the application, which has been filed as Annexure-2 that the defendants clearly stated before the learned Appellate Court in reply to the application that they had been in possession of the premises in their before the filing of the suit and even during the pendency of the same and that the constructions, which are there are old once, which were existing even prior to the filing of the suit. The defendants had also denied that they had taken forcible possession of the premises. It was also stated in the reply that the Commissioner, who was appointed by the learned trial Court had made a note in his report with regard to possession and the existence of the construction and it was wrong to assert that any change in the circumstances had taken place during the pendency of the proceedings.
Learned counsel for the defendant-petitioners, therefore, submits that while allowing the application, the learned Appellate Court has not given any reason whatsoever for allowing the application.
The impugned order dated 22.07.2006 (Annexure-3) reads as follows :-
22.7.06
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??????? ?? ???? ????? ???? ??? ??? ??? ?????? ???? ?? ???? ??????? ?? ???? ?? ?? ?????? ???? ????????? ?? ???? ?????? ?? ???? ? ????? ?? ?? ? ??? ????? ???? ?? ?????????? ?? ? ??? ??? ??????? ?????? ???? ??? ?????? ????? ? ?????? ???? ?????? ???? ?? ? ??: ??????? ?? ????? ????? ???? ????? ???? ???? ?? ? ???? ??? ?????? ?? ?????? 1000 ??. ?? ?? ???? ??? ??????? ??????? ??? ???? ??? ??? ?”
A look at the above order goes to show that the learned Appellate Court has, in fact, not assigned any reason for allowing the application nor has the learned Appellate Court given any findings or reasons to discard the plea raised by the defendants in the reply (Annexure-2). The learned Appellate Court has thus exercised jurisdiction with material illegality and the impugned order suffers from a jurisdictional error.
In the facts and circumstance of the present case, therefore, this writ petition is allowed. The learned Appellate Court before whom the appeal is pending would decide the application submitted by the plaintiff on 08.05.2006 for amendment of the plaint afresh in accordance with law assigning reasons for the same.
The parties are directed to appear before the learned Appellate Court on 17.08.2009.
With the above directions, the writ petition stands allowed, the impugned order dated 22.07.2006 (Annexure-3) is set aside.
(Dalip Singh) J.
ashok/