Court No. - 44
Case :- WRIT - C No. - 12944 of 2009 Petitioner :- Basant Respondent :- Additional D.J. C.N. 4 Gorakhpur And Others Counsel for Petitioner :- H.P. Mishra,Anup Kumar Pandey Counsel for Respondent :- Ashish Kumar Srivastava
Hon'ble Pankaj Bhatia,J.
Sub. Civil Misc. Substitution Application Nos.339812 of 2015, 54858 of 2016 along with Civil Misc. Delay Condonation Application No.54857 of 2016.
Heard counsel for the applicant on the aforesaid substitution applications along with delay condonation application.
Cause shown in the delay condonation application is found sufficient. The delay is condoned, the delay condonation application along with both the substitution applications are allowed.
Necessary substitutions be carried out by the counsel for the applicants.
The present petition has been filed challenging the order dated 17.3.2008 as well as the order dated 12.12.2008 passed by respondent nos.1 & 2 respectively.
The submission of the counsel for the petitioner is that the Original Suit No.1385 of 1986 (Basant Vs. Gorakh Pratap) was filed by the petitioner seeking mandatory injunction against the defendants. It is alleged that during pendency of the suit, the defendants demolished a part of the wall in question and as such an amendment application was filed seeking amendment in the Plain as well as seeking additional reliefs, the said application was dismissed by the impugned order by the Civil Court mainly on the ground that the application was delayed for which no explanation was given by the plaintiff.
A perusal of the amendment sought makes it clear that the amendment was with respect to the reliefs/cause of action which arose during the pendency of the suit and as such was in the nature of restitutionary reliefs in addition to the relief already prayed, I am of the view that to avoid multiplicity of the proceedings the trial Court ought to have allowed the amendment application in the interest of justice. The order passed is without any merits and is liable to be set aside. The amendment as sought by the petitioner in the Original Suit No.1385 of 1986, is allowed. Necessary amendment be incorporated within a period of two months form today and the Court below shall decide the Suit No.1385 of 1986 (Basant Vs. Gorakh Pratap) expeditiously preferably within a period of one year from the date of production of a certified copy of this order.
The petition is disposed off in terms of the above said order.
Order Date :- 18.12.2019 Hasnain