Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 8031 of 2018 Petitioner :- Ghisiyawan And 2 Others Respondent :- Rajendra Prasad And 24 Others Counsel for Petitioner :- Ganesh Datt Mishra
Hon'ble Mrs. Sunita Agarwal,J.
The petitioners seek to challenge the order dated 28.07.2018 passed by the first appellate court in rejection of application 272Ka- 2 filed in Civil Appeal No.6 of 2003 (Ghisiyavan Vs. Gabbu Lal & others).
The said suit has been filed with the relief of permanent injunction on the ground that the petitioners/plaintiff are in possession of the suit property which comprises of plot no.40, 41, 42, 43, 45, 46, 47, 48 and 49. The claim of the petitioners/plaintiffs was that shikmi numbers had been assigned to these plots at the time of the bifurcation of the village in the year 1907.
The trial court recorded a categorical finding of fact with regard to the position of the plots in dispute.
By means of the application 272Ka-2, the petitioners seek to confine their relief with regard to plot no.46. Submission of learned counsel for the petitioners is that the application 272Ka-2 could not have been rejected under Order 6 Rule 17 CPC in as much as, the said provision applies to only amendment in the case of pleadings. The petitioners are not seeking amendment in so far as the pleadings in the plaint is concerned. They are only seeking to restrict their relief with regard to plot no.46.
Considering the said submissions of learned counsel for the petitioners and perused the record, the plaint and the judgement of the trial court, it is more than apparent that by changing the relief in the plaint, the petitioners/plaintiffs are trying to change the nature of the suit which may cause detriment to the defendant. Moreover, the amendments in the plaint relief has been sought after a period of 29 years from the commencement of the trial, at the appellate stage and 15 years after the dismissal of the suit.
For any assertion with regard to the errors in the finding of the fact returned by the trial court, it is always open for the plaintiff to press the same before the first appellate court.
For the aforesaid, no infirmity in the order impugned. The present petition is, accordingly, disposed of.
Order Date :- 27.10.2018 Himanshu