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Injunction suit dismissed - amendment to plaint schedule of property in ist appeal in c.r.p in i

(Querist) 29 July 2014 This query is : Resolved 
In an injunction suit filed at the trial court, the suit was dismissed on the grounds that there were differences in the plaint schedule of property and schedule of property of the marked documents(power of attorney deed/settlement deed), although the patta stands clearly in the name of the petitioner - more importantly during the course of the suit, an advocate commissioner's report and court appointed land surveyor report were requested which clearly identified the suit property to be standing in the name of the petitioner-This report itself would have proved that the defendant clearly encroached into the property of the petitioner. The court failed to consider this report and simply dismissed on the ground cited above with the result the petitioner had to go to the appellate court.
Since, two different people were attempting to encroach into the suit property, two separate I.A's for amendments to the schedule property in the plaint were filed - and, also, a 3rd I.A for marking of additional documents i.e the court appointed advocate commissioner+ land surveyor report was filed.
Interestingly,one of the defendant never appeared in person or appointed a counsel to represent her in the court proceedings - therefore 04 advocate notices were sent to this defendant asking for her appearance. However, while dismissing the 02 I.A's(amendment of plaint petitions),the court dismissed the I.A in which this lady(defendant) failed to appear, on the very same grounds as the other I.A (2nd defendant). Moreover, the I.A for marking of additional document (the trial court appointed advocate commissioners report + land surveyor report) was kept pending. -This was shocking, as a mere reading of the most important evidence in this case could have easily brought out the fraud committed by the counsel of the 2nd defendant and the requested amendment could have been granted since all along the trial, the 2nd defendant has maintained that his Survey No. is different.
Also, when the lady defendant had never appeared in person or appointed a counsel to represent her, how can a court dismiss the I.A (plaint amendment petition) in that case also?
This shows how our courts are functioning !!!!!
Such judgments also point out the inefficiency of the judge in assessing the facts in the right perspective with the result the 02 I.A's were dismissed at the appellate court.
The petitioner now has to seek remedy in the form of a C.R.P at the high court.
I would like to know of other cases where the amendment in the plaint schedule of property has been granted by high court in a C.R.P OR under what provisio of the C.R.P can a petitioner/appellant file a C.R.P for grant of amendment - Clearly, the defendant will not be affected in any way whatsoever due to this grant of amendment since he has been stating a different survey number - more importantly, the defendant has confessed that he does not have a registered title deed.
Is it possible to request for marking of documents also in the same c.R.P petition?
Kindly enlighten me please.The petitioner hails from a poor family and needs assistance.
S.R.Venkataraman
Devajyoti Barman (Expert) 29 July 2014
1. Until decree of lower court is set aside, the appellate court can not allow amendment of plaint.
2. Making formal proof of a document is subject matter of trial, not of appellate court.

Do not rush things First get the decree st aside.
You can however apply for additional evidence in the appellate court under Order 41 Rule 27 CPC.
ajay sethi (Expert) 29 July 2014
agree with MR barman
R.K Nanda (Expert) 29 July 2014
consult local lawyer.
Rajendra K Goyal (Expert) 29 July 2014
Consult a local lawyer and show him all the documents and full case file.
S.R.Venkatraman (Querist) 29 July 2014
Dear Mr.Burman/Mr.Ajay Sethi,
At a time when the I.A's in the appeal has been filed in the appellate court, how can one set aside a decree of the lower court now?
Moreover, I understand that there are provisions in the C.P.C wherein one can mark or file additional documents even in the 2nd appeal - the I.A has been dismissed due to the technical misreading of the court - on a reference to few earlier judgments of the Madras High Court, the court has interpreted the definition 'even after due deligence' if mistakes are not corrected before the commencement of trial - in this context, the high court has opined that the term 'due deligence' need not be firmly applied for the reason that it is the counsel for petitioner or a respondent who represents his client in the court. The plaintiff or the respondent can only present the factual side of the issue. The legal side of its proper interpretation before the court lies with counsels. Therefore, it is bounden duty of the counsel to represent all the facts as also marking of documents, making amendments to plaints etc as per due process of court. In the event of failures on the part of the counsels to do so and if by furnishing the details that are available but have not been marked or represented, but the same may provide a clear evidence for the claims of either the plaintiff or the respondent and more importantly, such an evidence does not affect the balance of the suit in any way, the amendment may be granted to the affected party.
Therefore when such an interpretation is available, why the appellate court should not grant amendments as prayed for?
Moreover, the respondent has been stating another survey no. all along in the trial court - Therefore, the respondent should not object to granting amendment to the plaint schedule property of the plaintiff for the reason that the plaintiff is asking for amendments to his plaint only in his survey number and not the survey number of the respondent due to typing error and therefore has not been fully represented.
Devajyoti Barman (Expert) 29 July 2014
Show the papers and orders to your local lawyer.


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