IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 19 of 2010 Date of decision : 23.2.2010 ____________________________________________________ Smt. Gita Devi & others …Petitioners. Versus Ram Prasad …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the petitioners : Mr. O.P. Sharma, Sr. Advocate with Mr. K.R. Kashyap, Advocate. For the Respondent : Mr. Naveen Bhardwaj, Advocate. Kuldip Singh, Judge(Oral) This is a petition under Article 227 of the Constitution of India for setting aside the order dated 9.12.2009 passed by learned Addl. District Judge ( Fast Track Court ), Kullu in CMP No.52-VI/09. 2. The facts in brief are that petitioners had filed a suit for permanent prohibitory injunction restraining the respondent from interfering and raising construction on the joint land measuring 0-3-0 bigha comprised in khasra No.1628 till the same is lawfully partitioned between the co-sharers in accordance with law and damages thereof. 3. The suit was contested by the respondent and ultimately it was dismissed on 21.2.2009. In appeal the petitioners had filed an ______________________ ¹ Whether reporters of Local Papers may be allowed to see the Judgment ? No 2 application under Order 6 Rule 17 read with Section 151 CPC for amendment of the plaint on the grounds that during pendency of the suit the respondent had raised construction on suit land and therefore, in para-11 relief (iii) was also prayed to be added. In substance in para-11 (iii) the petitioners have prayed for relief of mandatory injunction. 4. The application has been opposed by the respondent on several grounds including the ground that petitioners had earlier filed similar application before the learned trial Court which was dismissed and therefore, application for amendment of the plaint is not maintainable. 5. I have gone through the record. The petitioners on 16.6.2008 had filed an application under Order 6 Rule 17 read with Section 151 CPC in the trial Court on the ground that the respondent had raised construction on the suit land. In the said application the petitioners had prayed for adding para-11(iii) in the plaint. In substance paras-11(iii) in the application dated 16.6.2008 filed in the trial Court and the application dated 20.8.2009 filed in the lower appellate Court are same. The application under Order 6 Rule 17 read with Section 151 CPC filed in the trial Court by the petitioners was dismissed on 11.8.2008. The learned counsel for the petitioners has submitted that necessity to file application in the lower appellate Court had arisen as the petitioners after dismissal of the application in the trial Court for amendment of the plaint raised construction on the suit land. The perusal of the application under Order 6 Rule 17 read with Section 151 CPC filed in the lower appellate Court indicates that no 3 such plea has been taken by the petitioners in the application for amendment of the plaint. Thus, it cannot be said that the application filed by the petitioners in the lower appellate Court is based upon facts which are subsequent to the dismissal of their application for amendment of the plaint in the trial Court. 6. The application for amendment filed in the trial Court and application for amendment of the plaint filed in the lower appellate Court in substance are on the same grounds. The trial Court has already dismissed the application for amendment of the plaint of the petitioners which order was not assailed by the petitioners independently. It is a different matter that petitioners had filed an appeal against the ultimate dismissal of their suit which appeal is pending in the lower appellate Court. There is no merit in the petition. Accordingly, petition is dismissed. The parties through their learned counsel are directed to appear before the lower appellate Court on 17.3.2010. The record of the lower appellate Court be remitted to the said Court immediately so as to reach before the date fixed. 7. In view of disposal of main petition the CMP No.39/2010 is rendered infructuous. Interim order dated 13.1.2010 stands vacated. February 23, 2010 (Kuldip Singh) (sks) Judge.