IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No.50 of 2008 Judgment reserved on: 1.5.2008. Date of decision: 3rd June, 2008. Yudhvir Singh …..Petitioner -Versus- Ramesh Chand and others ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for reporting? No For the Petitioners: Mr.Bimal Gupta, Advocate. For respondents: Mr.Lovnesh Kanwar, Advocate Deepak Gupta, J. This petition is directed against the order of the Civil Judge (Junior Division), Nahan dated 4.12.2007 whereby he has rejected the application for amendment of the plaint filed by the petitioner-defendant. Briefly stated the facts are that the Respondents No.1 to 3 (hereinafter referred to as the plaintiffs) filed a suit for grant of decree of mandatory injunction in which it was prayed that the plaintiffs are the owner of the suit property and the defendant be directed to remove unauthorized construction and encroachment from the suit property measuring 17-14 sq.mts. This suit was contested by the defendant and the defendant denied that he had encroached upon any portion of the suit land. It would be pertinent to mention that issues in the case were framed on 7.5.2003 and the matter was ordered to be listed on 17.7.2003 for plaintiffs’ evidence. The evidence of the plaintiffs was examined and closed in the affirmative on the said date and the matter listed for the evidence of the defendant on 27.8.2003. 2 On 27.8.2003 defendant’s evidence was not present and on the request of the defendant adjournment was granted to 22.10.2003. On this date also no evidence was present nor summoned but the defendant moved an application for appointment of a Local Commissioner to demarcate the land. The application was allowed and thereafter demarcation report was received on 7.4.2004 and the matter adjourned to 25.5.2004 for defendant’s evidence. Again no witnesses were present nor steps were taken and on the request of the defendant the case was adjourned to 22.7.2004. Again no witness was present and on the request of the defendant the case was adjourned to 24.8.2004. On this date also no evidence was present and an application was moved that the Local Commissioner be directed to give detailed report. The report of the Local Commissioner was finally set-aside on 30.10.2004 and new Local Commissioner was appointed. The new Local Commissioner’s report was received in Court on 18.2.2005 and objections to the report were filed by the plaintiffs only on 22.2.2005. In the meantime one of the defendants died and for this purpose the matter was adjourned on a number of occasions. The application for bringing on record the LRs was allowed on 3.9.2005. Amended written statement was filed and the matter was listed for cross examination of the Local Commissioner and the Local Commissioner was finally cross examined on 22.4.2006 and the matter was adjourned for defendant’s evidence to 25.5.2006. On this date also the defendant’s witnesses were not present and the case was adjourned to 30.6.2006. Again the witnesses were not present and the case was listed for defendant’s evidence on 31.7.2006 as last opportunity. Despite last opportunity having been granted defendants did not produce the evidence but instead sought time to file some application for bringing on record some documents. This application was dismissed on 3.3.2007 and defendants were permitted to produce their evidence on 29.3.2007. On 29.3.2007 also the evidence was not produced and the case was adjourned to 11.4.2007. On 3 11.4.2007 the evidence was not produced and the matter was adjourned to 26.4.2007. On 26.4.2007 again the evidence was not present and an application under Order 6 rule 17 CPC was filed. The only payer in the application is that since as per the demarcation it has been found that the defendant has encroached upon certain land of the plaintiff then even if the defendant is found to have made some encroachment the owner may be compensated by payment of costs for the portion of the land. This application was rejected mainly on the ground that the application having been moved after the commencement of the trial the same could not have been allowed. Hence, the present petition. I have heard Sh.Bimal Gupta, counsel for the petitioner and Sh.Lovneesh Kanwar, learned counsel for the respondents. On perusal of the record, I find that the defendant has been delaying the entire trial on one pretext or the other. Even the report of the second Local Commissioner as mentioned hereinabove was filed on 18.2.2005. No objections to the report were filed by the defendant. There is no explanation as to why the defendant did not immediately after the receipt of the report of the Local Commissioner move the application for amendment. From the perusal of the facts narrated above it is more than apparent that the defendant has been trying to delay the trial on one pretext or the other. He has successfully done so till now. In my considered opinion even the present application is totally malafide and has been filed only with a view to delay the proceedings. Therefore, I find no merit in the petition which is dismissed with costs assessed at Rs.3000/-. June 3, 2008. ( Deepak Gupta ), PV Judge