IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition 1047 of 2010 (M/S) Vivekanand Parvatiya Krishi Anusandhanshala, Almora and others ..……… Petitioners. Versus Jeewan Lal Sah and others ……… Respondents Mr. J.C. Belwal and Mr. Suresh Mishra, the learned counsel for the petitioners. Mrs. Menka Tripathi, Advocate for the respondent Nos. 10 to 13. Hon’ble Tarun Agarwala, J. Heard Shri J.C. Belwal and Shri Suresh Mishra, the learned counsel for the petitioners and Mrs. Menka Tripathi, the learned counsel for the respondent Nos. 10 to 13. A Civil Suit No. 9 of 2004 was filed praying that the defendant be restrained from interfering in the land shown in the schedule and also prayed that a decree of demolition be passed with regard to the alleged construction raised by the defendant on the plot, in question. The defendant appeared and filed his written statement and, based on the pleadings, issues were framed. Issue No.7 was with regard to the insufficiency of court fee paid by the plaintiff. It has been stated that this issue was decided by the trial court by an order dated 19th July, 2006. During the pendency of the proceedings, the defendant filed an application dated 8th April, 2010 for amendment of his written statement. In the application, the defendant contended that the suit was barred by limitation and that the court fee paid was insufficient and that the suit was not maintainable since a plea for the cancellation of the sale deed was not sought by the plaintiff. The trial court, after considering the matter, partly allowed the amendment application by an order dated 29th April, 2010 and allowed the defendant to incorporate the plea with regard to the suit being barred by limitation. The other pleas sought to be 2 incorporated by the defendant, namely, with regard to insufficiency of court fee and the suit being not maintainable on account of the sale deed not being cancelled was rejected. The defendant, being aggrieved by the said order, has filed the present writ petition. Having heard the learned counsel for the petitioner, the Court finds that the plea with regard to insufficiency of court fee was rightly rejected by the trial court, since, this issue had already been adjudicated upon by the court by an earlier order dated 19th July, 2006 and, consequently, the petitioner cannot be permitted to raise the issue afresh. With regard to the suit not being maintainable on the ground that the plaintiff had not prayed for cancellation of the sale deed dated 27th April, 1993, it is clear that this fact was in the knowledge of the defendant which he should have incorporated at the initial stage of his written statement. After the issues are framed and, the trial has begun, the Court was justified in rejecting the amendment application under the proviso to Order 6 Rule 17 of the C.P.C. In the light of the aforesaid, the Court does not find any error in the impugned order. The writ petition is dismissed. (Tarun Agarwala, J.) Dated 14.07.2010 Shiv