Withdrawal of suit
adv.durgadas k.kulkarni
(Querist) 18 March 2012
This query is : Resolved
R/Experts,
Facts of the case are as follows,
Plaintiff is the owner and possessor of land admeasuring 1000 Sq.Mtr.The defendant encroached upon 25 Sq.Mtr. of plaintiff's land and 40 Sq.Mtr. on Govt.road and was trying to construct.
Plantiff has filed suit for injunction and possession alongwith temporary injunction application in 2010.The lower court granted temporary injuction application.By aggrieved with the order defendant filed Miscellaneous Appeal and same is pending.
Defendant stated in appeal that the old survey no.202 of the suit property is not owned by respondent/original plaintiff.Defendant is taking this type of stand because plaintiff has pleaded this no. in his plaint.But actually position is that,plaintiff is owner of Survey No.201,due to typographical mistake survey no. 202 has been typed instead of 201.Defendant taking disadvantage of this mistake.
Meanwhile the M.C. removed the encroachment which made by defendant on Govt.road in March 2012.The prayer made by plaintiff is fulfilled by the M.C.to the extent of govt.road.Defendant is still encroacher on the plaintiff’s land though his encroachment is removed by M.C.
Now my question is that,whether plaintiff should proceed with praying removal of 25 Sq.Mtr. of plaintiff's land and 40 Sq.Mtr. on Govt.road ? Or withdraw his suit reserving right to file a fresh suit for removal of 25 Sq.Mtr. of plaintiff's land?
Please advice me , which step should I take?
Raj Kumar Makkad
(Expert) 18 March 2012
The respondent/original plaintiff in the given circumstances should move an application to amend the plaint under the provisions of Order 6 Rule 17 read with section 151 of CPC pleading to remove the prayer of Govt. land as well as to mention the true no. of survey as 201 instead of 201 which has wrongly typed.
This application shall be duly accepted and then the plaintiff shall be at full liberty to remove his defect as well as delete the prayer which has already been fulfilled,
Though the suit can also be withdrawan in the given circumstances with liberty to file afresh but there is a great danger in that situation as stay order is already in operation against defendant in the present case but after withdrawal, such defendant may raise construction within days so why to take heavy risk?
Shantilal Pandya
(Expert) 19 March 2012
Rightly advised by Mr. Rajkumarji ,
how ever mere mistake in quoting number of the suit property cannot be taken advantage of by the defendant, in such discrepancy the description of the boundaries would be decisive,
Guest
(Expert) 20 March 2012
Nicely advised.
