In the case of Paras ram v. Surender Singh and Ors., Mr. Justice Sanjeev Sachdeva allowed the petition, set aside the trial Courts’ impugned order and directed the trial court to issue summons to the respondents and take a view in the matter.
Brief facts of the case
Order dated 25.08.2020 passed by the Trial Court was impugned as claimed by the petitioner. The Trial Courts declined to issue summons in the suit and held that a simplicitor suit for injunction is not maintainable and an opportunity has been granted to the petitioner to amend the suit. Further to which no notice was issued to the respondents since they were yet to be summoned in the Suit and the subject order has been passed at the pre summons stage.
Arguments Before the Court
Learned counsel for the petitioner contended that the Trial Court has erred in its decision to hold that in plaint it was stated that the said plot was illegally possessed by the defendant by erecting a wall and further separating two plots by adding a gate at the said plot. It was also contended that there is no such allegation in the plaint, in fact in the plaint the allegation was categorically stated that the possession was of the plaintiff/petitioner and respondents were attempting to disturb the same.
The Court has observed that in the plaint it was contended that the petitioner is the owner of the subject property and the said plot came to the share of the petitioner in terms of a family settlement/partition deed dated 11.04.1999. Defendant No.1, a police officer, threatened to dispossess Petitioner and attempted to demolish the wall in between the plot Nos.55 and 56.
It was mentioned in plaint that the respondent had constructed a Wall separating the plots, thereafter, a complaint was made to the police and after an inquiry, the petitioner was put back in possession after which he erected the walls. Per submissions, the wall and gate, as noticed by the Trial Court, have been removed, which left the entire plot in the possession of the petitioner.
The Trial Court by the impugned order have prejudged the issue. Petitioner did not seek any amendment in the plaint. In case it is for the Trial Court to take a view as to whether to permit the petitioner to amend the suit or dispose of the same.
The Court directed The Trial Court to issue summons to the defendant/respondent in the suit and the impugned order was set aside, accordingly petition was allowed in the above terms.
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