IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 252 of 2010 Date of decision: 20.10.2010 Inder Singh Bhandari and others Petitioners. Versus Smt. Sewanti Negi Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioners: Mr. Suneet Goel, Advocate. For the respondent: Mr. Ajay Mohan Goel, Advocate. Deepak Gupta, J. (oral) 1. This petition is directed against the order dated 15th May, 2010 passed by the learned Civil Judge (Junior Division), Court No.VII, Shimla, whereby the application filed by the plaintiff for amendment of the plaint was allowed. 2. Normally, this Court would not exercise its constitutional jurisdiction under Article 227 of the Constitution of India to set-aside an order falling within the jurisdiction of the trial Court. However, in view of the peculiar facts of the present case, I am constrained to set-aside the order of the learned trial Court for the reasons mentioned hereinafter. 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes. 2 3. The respondent No.1 Sewanti Negi was the plaintiff in the trial Court. She filed a civil suit being Civil Suit No. 173 of 1998 against Shri Inder Singh Bhandari. This suit was instituted on 28.12.1998. The main prayers in the suit read as follows:- (a) A decree for permanent perpetual prohibitory injunction may kindly be passed in favour of the plaintiff and against the defendant restraining the defendant from raising any type of further construction on any part of his property comprised in Khasra No.246/2/3, Mauja Patyog, Teh. & Distt. Shimla and further restraining the defendant from raising the height of his building in any manner thus obstructing the flow of light, air and sun-shine to the property of the plaintiff and also restraining the defendant from causing any further damage to the retaining wall, foundations, septic tank, sewerage and waste water pipe lines or to any other portion of the plaintiff’s property. (b) A decree for mandatory injunction may kindly be passed in favour of the plaintiff and against the defendant directing the defendant to set right the exposed and damaged portions of retaining wall and foundations of the building of the plaintiff and also to set right the damaged portion of foundation of septic tank and also further directing him to provide independent retaining wall on his property starting from the one edge to the other edge of the property of the plaintiff ending towards septic tank side and further directing the defendant to demolish the illegally raised upper storey of his building which has materially blocked the light, air and sun-shine, etc. of ground floor of plaintiff’s property and also to 3 demolish the structures raised above the second slab of his building and further directing the defendant to demolish the illegally raised construction of the ground floor of his building which construction he has raised on the set backs which he is legally liable to leave towards the property of the plaintiff. 4. It would be pertinent to mention that in this suit on 17th October, 2001 an order was passed directing the parties to maintain status-quo. Thereafter, the plaintiff filed an application alleging that Shri Baldev Singh and Chander Vir brothers of Inder Singh were also raising construction and they be impleaded as parties. This application was allowed but for four years virtually no steps were taken by the plaintiff for effecting service on the newly added respondents. Issues in this suit were originally framed on 21.8.1999. No evidence was present on two three occasions and thereafter this application for impleadment of the parties was filed, which remained pending till the year 2005. Then an application for amendment of the plaint was filed which was allowed. Thereafter, amended plaint was filed on 17.5.2006 and fresh issues were framed on 22.6.2007. On 30.8.2007 neither any witness was present nor anybody appeared on behalf of the plaintiff and the suit was dismissed in default. An 4 application for restoration of the suit was filed on 11.9.2007. 5. In the meantime, for reasons best known to the plaintiff, the plaintiff also decided to file a fresh suit with regard to the same cause of action. This suit was filed on 6.10.2007 when the application for restoration of the previous suit dismissed in default had already been filed. The prayers made in this suit read as follows:- a) That a decree for permanent perpetual prohibitory injunction may kindly be passed in favour of the plaintiff and against the defendant, restraining the defendants from raising any type of further construction on any part of their property comprised at Khasra No.246/2/3 at Mauza Patyog, Pargna Jajhot, Tehsil and District Shimla, H.P. and further restrained the defendants from raising height of their building in any manner whatsoever which will block the light, air and sunshine to the building and property of the plaintiff. b) That a decree for mandatory injunction may kindly be passed in favour of the plaintiff and against the defendants directing the defendants to demolish the illegal construction i.e. the height of the pillars upon the last story of the building with the sole intention to construct another storey without any permission and due sanction from the competent authority. 6. A reading of the files shows that virtually there was no difference in the two plaints. I have gone through the plaints and I find that they are virtually identical. Surprisingly, the plaintiff in the second suit 5 made no mention of the suit earlier filed by her, which was dismissed in default and in which she had already filed an application for restoration of the suit. In the second suit no evidence was led by the plaintiff and the plaintiff’s suit was dismissed on merits vide judgement dated 27.11.2009. It is not disputed before me that this judgement has not been challenged and has attained finality. In such circumstances where the plaintiff took the chance of filing a second suit with regard to the same cause of action, can the plaintiff be permitted to amend the plaint with a prayer that the construction raised during the pendency of the suit should be ordered to be demolished. Normally such a prayer would be allowed but in the present case since the plaintiff herself took the chance of filing the second suit that too without informing the Court that a previous suit had been filed and dismissed in default, such plaintiff is not entitled to any discretionary relief from the Court. In these circumstances, the application of the plaintiff could not have been allowed since this would go against the decree which has attained finality. 7. In view of the above discussion, the order passed by the learned Civil Judge (Jr. Division), Court No.(7), Shimla, is set-aside and the application filed by the plaintiff for amendment of the plaint is rejected. 6 8. I find that this suit was pending with the Court No. 2, Shimla and has been transferred to Court No.7. This is a very old matter where issues had been framed and keeping in view the nature of the dispute involved, I feel that it would be appropriate that the matter is heard by a Civil Judge (Senior Division). Therefore, the case is transferred to the Court of learned Civil Judge (Senior Division), Shimla before whom the parties shall appear on 29th November, 2010, who shall make an endeavour to decide the same as early as possible and in any event not later than 31st March, 2011. 20th October, 2010 (Deepak Gupta), J. ™