// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.1899/2009 With S.B. Civil Misc. Stay Application No.253/2009 {Om Prakash Vs. The Additional Civil Judge (Senior Division) No.2, Bharatpur & Others} Date of Order ::: 20.03.2009 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Prahlad Sharma, Counsel for plaintiff- petitioner #### By the Court:- The plaintiff-petitioner has preferred this writ petition under Article 227 of the Constitution challenging two impugned orders - first dated 10th November, 2008, whereby the trial court rejected the plaintiff's application under Order 47 Rule 1 CPC read with Section 114 CPC for review of the Order dated 22.08.2006 rejecting the application for amendment of the suit, and second dated 22nd August, 2006 passed by the Additional Civil Judge (Senior Division) No.2, Bharatpur, in Civil Suit No.5/1998, whereby the trial court rejected his application under Order 6 Rule 17 CPC to amend the suit. The plaintiff-petitioner filed a suit for permanent injunction in respect of property in // 2 // dispute in the trial court way back on 4th January, 1995. The application under Order 6 Rule 17 CPC was filed on 12th April, 2006 wherein it was alleged that on 6th January, 1995 an interim stay order was passed by this Court but, despite the stay order, the defendants demolished the staircase and other construction, as mentioned in the application, of the property in dispute, therefore, it becomes necessary to amend the plaint. The application was contested by the defendants by filing written-reply dated 6th May, 2006 wherein it was mentioned that the application for temporary injunction was filed on 12th January, 1995, which was dismissed on merits on 24th May, 1996; thereafter an appeal was preferred on 20th July, 1996 and the same was also dismissed on 26th April, 2001. The cause of action for proposed amendment arose on 2nd February, 1995, whereas the application for amendment has been filed after a period of more than ten years i.e. 12th April, 2006. The plaintiff's application has been filed with inordinate delay and does not appear to be bona- fide and appears to have been filed only to harass the defendants No.1 and 2. The decree of eviction has already been passed against the plaintiff by the Munsiff Court, Bharatpur on 16th March, 1981 which has been affirmed by the // 3 // appellate court on 27th July, 1995. The so-called construction, which is said to have been demolished, was removed by the Government in the year 1995 and judicial notice of the same can be taken therefore the application filed by the plaintiff be dismissed. After considering the submissions of learned counsel for both the parties, the learned trial court dismissed the application for amendment in the plaint vide order dated 22nd August, 2006 on the ground that the plaintiff's application has been filed with inordinate delay; it also does not appear to be bona-fide and the same cannot be allowed. The order was not challenged before the High Court but a review petition was filed to review the order dated 22nd August, 2006, which has also been dismissed by the trial court vide order dated 10th November, 2008. The contention of the learned counsel for the petitioner is that the trial court has committed an illegality in rejecting the application under Order 6 Rule 17 CPC only on the ground of delay in its filing, whereas it could not have been a ground for rejecting the application and, as such, the application be allowed and the impugned orders passed by the trial court be set-aside. I have considered the submissions of the // 4 // learned counsel for the petitioner in the light of the reasons assigned by the court below for rejecting the application for amendment in the plaint as well as review petition. The trial court has considered all the facts and circumstances of the case and thereafter recorded a finding that the application is not bona-fide. A detailed order has been passed by the court below assigning the cogent reasons for rejecting the application. This Court, while exercising the powers under Article 227 of the Constitution, is required to see as to whether the trial court had jurisdiction to pass the impugned order or not. No jurisdictional error has been pointed out in the order of the court below so as to interfere with the same. In these circumstances, I do not find any jurisdictional error in the impugned orders passed by the trial court so as to interfere with the same. The writ petition is accordingly dismissed in limine. Consequent upon dismissal of the writ petition, the stay application, filed therewith, does not survive and the same is also dismissed. (Narendra Kumar Jain) J. //Jaiman//