1 S.B. CIVIL WRIT PETITION NO.6507/2007 Jagdish Chandra. vs. Civil Judge (JD), Chittorgarh and others. Date : 22.10.2007 HON'BLE MR. PRAKASH TATIA, J. Mr.SL Jain, for petitioner. - - - - - Heard learned counsel for the petitioner. The petitioner is aggrieved against the order dated 18.9.2007 by which the trial court dismissed the petitioner's two applications one under Order 6 Rule 17 and another under Order 14 Rule 5 CPC. According to learned counsel for the petitioner, the plaintiff/respondent filed suit on the basis of his easementary right and, therefore, the defendant/petitioner wanted to raise objection about the maintainability of the suit as the plaintiff did not pay the court fee for getting the decree for declaration of easementary right. It is also submitted that the plaintiff in his plaint very specifically pleaded that his 2 easementary right will be affected. The petitioner also submitted that the plaintiff filed the suit for injunction and the trial court framed the issue no.1 to the effect that whether the defendant no.1 is raising construction in the setback of plot no.29 ? And in fact, the defendant no.1 has already raised construction, therefore, the trial court wrongly framed the issue no.1. The petitioner/defendant further proposed the issues in his application and those issues were not framed by the trial court and by that, the trial court committed illegality. Learned counsel for the petitioner relied upon the decision of the Hon'ble Supreme court delivered in the case of Usha Balashaheb Swami & Ors. vs. Kiran Appaso Swami & Ors. reported in 2007 AIR SCW 2545 wherein the Hon'ble Supreme Court held that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. Addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding altering or substituting a new cause of action in the plaint may be objectionable. It is also held that in case of amendment of a written statement, the Courts are more liberal in 3 allowing an amendment. Learned counsel for the petitioner relied upon another decision of the Hon'ble Supreme court delivered in the case of Andhra Bank. vs. ABN Amro Bank N.V. & Ors. reported in 2007 AIR SCW 4466 wherein the Hon'ble Supreme Court held that delay in seeking amendment is no ground to refuse amendment nor merit is required to be gone into at that stage. I considered the submissions of learned counsel for the petitioner and perused the facts of the case. The trial court dismissed the application for amendment of the written statement on the ground that the plaintiff did not sought any declaration of his easementary right which is clear from the relief claimed in the plaint and, therefore, there was no reason for the defendant to take a plea that the suit has not been properly valued and the court fees has not been paid on the relief of declaration of easementary right. I do not find any illegality in this finding. In addition to the above, it is clear from the plaint itself that the plaintiff in his plaint very specifically pleaded that the defendant is 4 raising construction against the approved plan by which the Municipal Board permitted the defendant to raise construction. Therefore also, it appears that the plaintiff is seeking relief of injunction on the basis of the permission granted to the petitioner by Municipal Board for raising construction. So far as rejection of the application under Order 14 Rule 5 CPC is concerned, it appears that the trial court framed the issue on the basis of the pleading of the parties as the plaintiff claimed that the defendant is raising construction in the setback area. In the suit for injunction, when the suit was filed for injunction, appropriate relief can be granted by the Court under Order 7 Rule 7 CPC also. After going through the facts of the case, I do not find any reason to interfere in the impugned order while exercising jurisdiction under Article 227 of the Constitution of India. Consequently, this writ petition having no force, is hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya