IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.210 of 2010 Date of decision : August 18, 2010 Vivek Gupta …Petitioner. Versus Vanita and another …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Tarlok Chauhan, Advocate. For the Respondents : Mr. Nimish Gupta, Advocate. Deepak Gupta, J (Oral) By means of this petition, the petitioner (hereinafter referred to as the plaintiff) has challenged the order dated 6th May, 2010, whereby his application for amendment of the plaint has been rejected. 2. Briefly stated the facts of the case are that the plaintiff had filed a suit that he being co-sharer in the suit property and also being tenant of one shop is in possession of the said shop and the respondents (hereinafter referred to as the defendants) be restrained from interfering in his possession. 3. Written statement was filed by the defendants, in which it was stated that the plaintiff alongwith his brother and two sisters is owner to the extent of 1/12th share in the suit property and defendant Smt. Vanita Whether reporters of the local papers may be allowed to see the judgment? Yes. …2… alongwith her son Sunny and daughter Dipti are also owners of 1/12th share in the suit property. According to defendant No.1, it was her husband Shri Amrit Gupta, who was running this shop and after his death her son Sunny was running the same. Her son Sunny sustained injury in a fire and, therefore, could not attend the shop and as such the shop remained closed. Taking advantage of this, the plaintiff tried to take possession of the shop. Thereafter, a settlement was arrived at between the parties. The shop was divided into two portions by constructing a partition wall and each side got possession of one half of the shop by putting separate shutter. The case of the defendants is that the plaintiff was trying to break open the partition wall and take possession of the portion of the shop, which had fallen to the share of the defendants. 4. Initially, an order of status quo was passed in favour of the plaintiff on 29th April, 2009. Thereafter this order of status quo was modified to the extent that both the parties are in possession of the property and they shall maintain status quo qua the same. 5. The defendants thereafter filed an application that despite the order of status quo the plaintiff had taken over the possession of the shop, which had fallen to the share of the defendants and filed an application that the …3… possession of the said shop be restored to them. The learned trial Court vide order dated 5th October, 2009, directed the SHO, Police Station Sadar, Chamba to hand over the possession of the said shop to the defendants by breaking open the lock of the plaintiff. Admittedly, possession of that shop was handed over to the defendants pursuant to the said order. 6. Thereafter, the plaintiff filed an application under Order 6 Rule 17 of the Code of Civil Procedure, in which amendment if the plaint was sought to the effect that the plaintiff had been dispossessed after the filing of the suit and that a decree for possession of the shop be passed in his favour. This application was contested and has been dismissed by the learned trial Court. 7. At the outset, I may note that the evidence in the suit has still not been led. I also find that the only ground, which weighed with the learned trial Court, was that the defendants were given possession of the suit property on the basis of the orders passed by it, as referred to hereinabove. The learned trial Court held that the application was not maintainable. 8. While passing orders on an application under Order 39 or Section 151 of the Code of Civil Procedure, the Court does not record evidence. The applications are decided on the basis of averments made in the pleadings. …4… A suit is decided on the basis of evidence recorded before the Court. It is settled law that the findings given in such interlocutory applications do not bind the trial Court and while giving findings on the suit different findings may be given. 9. The claim of the plaintiff that he had been dispossessed after the filing of the suit may be right or wrong. However, this question cannot be decided at the time of deciding the application for amendment of the pleadings. The question whether the plaintiff has been dispossessed after the filing of the suit or whether he has any right to claim possession of the suit property is a question to be decided by the learned trial Court after evidence is led by the parties. Therefore, the learned trial Court gravely erred in holding that the application was not maintainable, only on the ground that possession was handed over to the defendants pursuant to the orders passed by the Court. 10. It is, however, made clear that merely by allowing the amendment it has not been held that the plaintiff was in possession of the suit property at the time of the filing of the suit. This is an issue which the trial Court has to decide on merits. The views, which have been expressed hereinabove, have been expressed only for the purpose of this petition and shall have no bearing …5… on the merits of the case. Similarly, the views expressed by the learned trial Court while deciding the interlocutory application cannot be taken into account while deciding the suit. 11. The parties, who are represented by the learned counsel, are directed to appear before the learned trial Court on 14th September, 2010. The Registry is directed to ensure that the record is returned immediately, so that it reaches the Court below well before the aforesaid date. Petition stands disposed of in the aforesaid terms. No costs. August 18, 2010(sd) ( Deepak Gupta ), J