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Reserved On:- 04.03.2022

Delivered On:- 15.03.2022

Case :- MATTERS UNDER ARTICLE 227 No. - 3110 of 2018

Petitioner :- Ramesh Chand Kingar And Another

Respondent :- Basant Kumar Bansal And 3 Others

Counsel for Petitioner :- Sumit Daga

Counsel for Respondent :- Jagdish Prasad Mishra

Hon'ble Siddharth, J.

1.

Heard Sri Sumit Daga, learned counsel for the petitioners and Sri

Jagdish Prasad Mishra, learned counsel for the respondents.

2.

This petition has been filed under Article 227 of the Constitution of

India praying for setting aside the judgment and order dated 20.03.2018

passed by the Additional District Judge, Court No. 15, Muzaffar Nagar in

Civil Revision No. 85 of 2014 (Basant Kumar Bansal & Another vs.

Ramesh Chand Kingar & Others).

3.

Plaintiffs/respondents instituted an Original Suit No. 223 of 2009

against the defendants-petitioners & defendants-respondents for the relief

of permanent prohibitory injunction praying that defendants may be

restrained from using gallery of the plaintiffs in any manner, which is

shown as A, B, C, D, E, F in plaint map. Defendants-petitioners are the

contesting parties and they filed their written statement and denied the

aforesaid plaint allegation. As per the plaintiffs-respondents, gallery shown

as A,B,C,D,E,F exclusively belongs to them and defendants-petitioners

have no right in the said gallery. However, defendants-petitioners claimed

that they were using the said gallery since beginning just like setback of

their house and their windows and drainage system were also towards this

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gallery. It was also stated by the defendants-petitioners that plaintiffs-

respondents have no right in the said gallery but in their absence they have

made some construction in the said gallery and also installed safety tank

whereby plaintiffs-respondents deliberately closed the window and

stopped the drainage system of the defendants-petitioners.

4.

Learned court below vide its order dated 10.03.2010 directed both

the parties to maintain status quo on spot in question and the said order

was affirmed in appeal. Therefore, the order dated 10.03.2010 is in

operation till today.

5.

Defendants-petitioners raised all their objections in their written

statement but at the time of filing of the said written statement, due to the

some inadvertent mistake, they could not seek relief against the plaintiffs-

respondents for removal of illegal constructions, therefore, defendants-

petitioners moved their counter claim against the plaintiffs-petitioners for

the relief that they may be directed to remove their illegal constructions in

the aforesaid gallery and they may further be directed not to restrain the

defendants-petitioners to use the said gallery. The said counter claim was

moved by the defendants-respondents by means of amendment application

dated 19.04.2014 being Paper No. 104-Ka. Plaintiffs-respondents filed

their objection in the aforesaid amendment application which was allowed

by the Civil Judge, vide its order dated 20.10.2014 and the amendment

was incorporated in written statement. The plaintiffs-respondents

challenged the aforesaid order dated 20.10.2014 in Civil Revision No. 85

of 2014 which was allowed and hence this petition has been filed

challenging the same.

6.

Learned counsel for the defendants-petitioners has submitted that

against the order allowing amendment application, revision was not

maintainable and no failure of justice or irreparable loss was caused to the

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other side and therefore, such order does not falls under clause (a)(b) of

Section 115(1) of C.P.C. He has relied upon the judgment of the Apex

Court in the case of Prem Bakshi and others vs. Dharam Dev and others,

2002(1) A.W.C (SC) Page 484. He has stated that in order to avoid

multiplicity or judicial proceedings, counter claim can be filed by way of

amendment as held by this Court in the case of Hazari Lal and others vs.

Brahma Nand and others, 2007 (1) ARC, Page No.