Dismissal of appeal if suit not amended
Mycent
(Querist) 21 February 2016
This query is : Resolved
Dear Sirs,
My neighbour had started construction on a vacant piece of land adjacent to my house & in this process he encroached 6 ft of my property too. I filed a case in court for encroachment wherein the court asked for commissioner report.
The commissioner report stated that there is an encroachment of 4.75 ft.
However the trial court didn't consider the commissioner report & dismissed my case.
Now I moved to higher court in appeal. Here the opp party's lawyer is saying that since we have not amended our suit as per commissioner's report, this should be dismissed. He also quoted some judgement from Karnataka court wherein its stated that if the suit is not amended as per commissioner's report it should be dismissed.
Kindly enlighten me on this point, is this correct ? Is amendment necessary ?
Thanks in advance !
Regards,
Satender
Devajyoti Barman
(Expert) 21 February 2016
Without seeing the plaint, commission report and the lower court report it is difficult to advise.
There is no need to amend that is for sure.
rajagopal.s
(Expert) 21 February 2016
Hi
You need to amend your appeal to include the commissioner's report which acknowledges the encroachment and same being ignored by the lower court.
Rajendra K Goyal
(Expert) 21 February 2016
Full case file need to be referred, consult some senior local lawyer.
Adv. Yogen Kakade
(Expert) 22 February 2016
Even if it is not amended doesn't mean it shall be dismissed only on those grounds.
Mycent
(Querist) 24 February 2016
Thx to all respected experts for sharing your opinion.
Is there any SC judgement which says that if the plaint is not amended as per commissioner's report it should be dismissed?
Thanks in advance!
regards,
Satender
Mycent
(Querist) 25 February 2016
Experts pls help !
