IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 26 of 2010 Date of decision: 30.11.2010 Prem Shankar Jha …. Petitioner Versus M/s.T.K.International Ltd. ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioner: Mr.R.L.Sood, Sr.Advocate with Mr.Sanjeev Kumar, Advocate. For the respondents: Mr.C.N.Singh, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) 1. By mean of this petition, the petitioner lays challenge to the order dated 11.1.2010 passed by the learned Civil Judge (Senior Division), Court No.1, Shimla rejecting the prayer of the plaintiff to amend the suit. 2. The brief facts of the case are that the plaintiff filed a suit in the year 1998 alleging that the defendant had thrown debris upon his land and, therefore, the plaintiff was entitled to Rs.3 lacs on account of damages caused to the suit land and also 2 for removal of the encroachment. Various issues were framed including the issues whether the defendant had encroached upon the suit land and whether the plaintiff is entitled to a decree for possession. A specific issue was framed whether the plaintiff is entitled for recovery of damages in the sum of Rs.3 lacs from the defendant. 3. Be means of this application filed under Order 6 Rule 17, CPC, the petitioner prayed that w.e.f. 16.11.2006, he may also be awarded use and occupation charges for the area being occupied by the defendant @ 300/- per day. The suit is more than 12 years old and it is in fact, shocking that the evidence of the plaintiff has still not started. Therefore, this application in such a suit has rightly been rejected. The petitioner can obviously file a separate suit for use and occupation charges and the pendency of this suit shall not in any manner be a bar to any such suit, if filed. 4. I have gone through the entire record and I find that the plaintiff has been delaying the matter on one pretext or the other and has filed a number of applications for amendment of the plaint 3 and for framing additional issues. The suit has been dismissed in default on more than one occasion. Till date, the plaintiff has not even examined himself nor any witness. For the first time, the case was listed for evidence of the plaintiff on 28.7.2003 and various opportunities were granted to the plaintiff to produce his evidence but the plaintiff did not lead any evidence till date. The plaintiff has somehow managed to delay this suit for all these years. Therefore, in my opinion, he could not be permitted to amend the suit. The petition is, therefore, rejected. 5. Since the original suit was filed in the year 1998, the parties through their counsel are directed to appear before the learned Trial Court on 20.12.2010. The Registry is directed to convey this order to the learned Trial Court immediately. The learned Trial Court shall fix a date for the evidence of the plaintiff in the month of January, 2011. The plaintiff shall not be given more than two opportunities, i.e., one in January and one in February, 2011 to produce his evidence. Thereafter, the defendant shall be given three opportunities to lead its evidence. It shall be the responsibility of the plaintiff to serve his witnesses and 4 he may take dasti summons for their service. The plaintiff shall not be given any further opportunity for the production of his evidence. In case the witnesses who are served but do not appear, coercive steps shall be taken for their service. In case the plaintiff fails to produce his entire evidence during these two hearings, his evidence shall be closed. 6. It is made clear that even if the plaintiff files any other application, the learned Trial Court shall not adjourn the case and shall proceed to record the evidence and under no circumstances, the case of the petitioner will be adjourned for this purpose. The learned Trial Court shall make an endeavour to decide the suit at the earliest and in any event not later than 30th June, 2011. The Registry is directed to send the record of the learned Trial Court back so as to reach well before the aforesaid date. No order as to costs. November 30, 2010 ( Deepak Gupta ) (m) Judge