Rajasthan High Court – Jodhpur
Khushkumar Soni vs Kapoorchand Soni (2026:Rj-Jd:15155) on 25 March, 2026
[2026:RJ-JD:15155]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 11425/2025
1. Khushkumar Soni S/o Murlidhar Soni, Aged About 44
Years, R/o Village Aauwa, Sonaro Ka Bass, Tehsil Marwar
Junction, District Pali Rajasthan.
2. Gaurav Soni S/o Murlidhar Soni, Aged About 38 Years, R/
o Village Aauwa, Sonaro Ka Bass, Tehsil Marwar Junction,
District Pali Rajasthan.
3. Lrs Of Bhanwarlal Soni S/o Narayanlal, Through -
4. Jitendra Kumar S/o Late Bhanwarlal, Aged About 46
Years, Village Aauwa, At Present- Purusharthi Nagar, 1St
Floor City Height Complex, Pali, District Pali Rajasthan.
5. Smt. Saroj D/o Late Bhanwarlal, W/o Prakash Soni, Aged
About 54 Years, R/o Village Aauwa, At Present- 438
Bhopal Chauk, Camp Pune Maharashtra.
6. Smt. Meena D/o Late Bhanwarlal, W/o Mahesh, Aged
About 52 Years, R/o Village Aauwa, At Present- Hariniwas
Building, Gwalior Tank, Mumbai Maharashtra.
7. Smt. Indubala D/o Late Bhanwarlal, W/o Pawan Kumar,
Aged About 50 Years, Shanti Devi Market, Meena Marg,
Merta City, Nagaur Rajasthan.
8. Gaytri Devi D/o Late Bhanwarlal, W/o Devraj Soni, Aged
About 48 Years, R/o M/s Variety Jewellers, Pipri Nilakh,
Pune Maharashtra.
9. Smt. Pushpa Devi D/o Late Bhanwarlal, Aged About 70
Years, R/o Village Aauwa, At Present- Purusharthi Nagar,
1St Floor City Height Complex, Pali, District Pali
Rajasthan.
----Petitioners
Versus
1. Kapoorchand Soni S/o Mishrilal Soni, R/o Village Aauwa,
Sonaro Ka Bass, Tehsil Marwar Junction, District Pali
Rajasthan.
2. Lrs Of Smt. Laxmi Devi Soni, W/o Mishrilal Soni, Through
-
3. Smt. Shanti Devi W/o Pannalal D/o Mishrilal Soni, R/o Flat
No. 208, Om City Vinayak, S R A Cooperative Society, T P
S Nariman Road, Mumbai (Maharashtra).
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4. Smt. Sushila W/o Dilip, D/o Mishrimal, R/o Village
Musalia, Tehsil- Sojat, District Pali (Rajasthan).
5. Smt. Bhagwati W/o Mohanlal D/o Mishrimal Soni, R/o
Main Bazaar, Khivada, Tehsil Raji And District Pali
(Rajasthan).
6. Smt.ajodhya Devi W/o Kamal Soni, Bohron Ki Dhal, Pali,
Tehsil And District Pali (Raj.).
7. Smt. Ramiya W/o Ramesh D/o Mishrimal, R/o Village-
Guda Aindla, Tehsil And District Pali (Rajasthan).
8. Smt. Ratan Devi D/o Mishrimal, R/o Chalig, Shivam
Apartment, 2Nd Floor, Akbar Nagar, Opposite Mahadev
Temple, Nava Vadaj, Ahmedabad (Gujarat).
9. Champalal S/o Mishrimal, R/o Aauwa, Khathiko Ka Bas,
Tehsil Marwar Juntion, District Pali (Rajasthan).
10. Lalit Kumar S/o Kapoorchand Soni, R/o Village Aauwa,
Sonaro Ka Bass, Tehsil Marwar Junction, District Pali
Rajasthan.
11. Hemant Kumar S/o Kapoorchand Soni, R/o Village Aauwa,
Sonaro Ka Bass, Tehsil Marwar Junction, District Pali
Rajasthan.
----Respondents
For Petitioner(s) : Mr. Narendra Singh A. Rajpurohit
For Respondent(s) : Mr. J.K. Bhaiya
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order
25/03/2026
1. The petitioners-plaintiffs have filed the present writ petition
under Article 227 of the Constitution of India challenging the order
dated 05.04.2025 (Annx.7) passed by the Civil Judge, Marwar
Junction, District Pali, whereby the petitioners’ application under
Order VI Rule 17 read with Section 151 of the Code of Civil
Procedure, 1908 (for short ‘C.P.C.’ hereinafter) has been rejected.
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2. The application sought permission to amend the plaint to
include a prayer for reconstruction of ventilators (sunshades)
allegedly demolished by the respondents, which the petitioners
claim affects their easementary rights to light and air.
3. Heard learned counsel for the parties.
4. Learned counsel for the petitioners submits that the
petitioners are co-owners of an ancestral house at Village Auwa,
Tehsil Marwar Junction, District Pali, constructed approximately 61
years ago, with three ventilators (sunshades) adjoining the
respondents’ house. Through these, the petitioners have enjoyed
uninterrupted air and light, thereby acquiring an easementary
right. It is alleged that during construction of the adjoining
property, the respondents demolished the sunshades, interfering
with this right.
5. It is submitted that the petitioners instituted a suit for
permanent and mandatory injunction on 16.05.2016 seeking
protection of their easementary rights. The respondents filed a
written statement denying the allegations. Issues were framed on
24.05.2018, and the trial court granted a temporary injunction
restraining the respondents from causing obstruction.
Subsequently, the petitioners filed an application under Order VI
Rule 17 read with Section 151 of C.P.C., which was dismissed by
the trial court on 05.04.2025.
6. Learned counsel for the petitioners contends that
amendments necessary to determine the real controversy must be
allowed. It is submitted that the relief sought was already
reflected in paragraph 8 of the plaint, and the application was
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merely clarificatory. It is further contended that the proposed
amendment does not alter the nature of the suit and seeks
additional or alternative relief based on already pleaded facts, and
thus, causes no prejudice to the respondents.
7. In support of his contention, learned counsel for the
petitioners has relied upon the following decisions :-
i. Life Insurance Corporation of India vs.
Sanjeev Builders Private Limited & Anr.
reported in (2022) 0 AIR (SC) 4256
ii. Dinesh Goyal @ Pappu vs. Suman Agarwal
(Bindal) & Ors. (2024 INSC 726).
iii. Pankaja and Ors. vs. Yellappa (D) by LR’s
and Ors. reported in AIR 2004 SC 4102
8. In contrast, Mr. J.K. Bhaiya, learned counsel appearing on
behalf of the respondents, while supporting the order impugned
has opposed the writ petition. It is submitted that the issues were
framed on 24.05.2018 and the statement of P.W. 1 – Khush Kumar
was recorded on 04.11.2024, whereas, application for amendment
has been filed only on 25.11.2024. It is contended that the
application for amendment was, thus, filed only after the
commencement of the trial, which reflects an undue delay on the
part of the petitioners. Further, it is emphasized that the issues
relating to the claim for a mandatory injunction have already been
duly framed and are presently under consideration by the court. It
is argued that allowing the proposed amendment at this stage,
would not only disrupt the orderly progress of the proceedings but
would also effectively alter the very nature of the suit. Such an
alteration, according to the respondents, would cause serious
prejudice to them, as it would necessitate reopening issues
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already settled and compel additional evidence, thereby impeding
the fair and expeditious adjudication of the matter.
9. Lastly, it is argued that provisions of Order II Rule 2 of C.P.C.
cannot apply to an amendment which is sought on an existing
suit.
10. Reliance has been placed by learned counsel for the
respondents on the following decisions :-
i. Noor Kabirdin Meghani & Ors. vs. Sanjeev
Manuel D'Souza reported in 2022(1) Civil
Court Cases 204 (Bombay)
ii. Parvez Ahmad vs. District Judge Balrampur
& Ors. reported in 2021(3) Civil Court Cases 198
(Allahabad)
11. I have considered the submissions made by learned counsel
for the parties, perused the material available on record and gone
through the judgments cited at Bar.
12. Upon consideration of the pleadings, evidence, and
submissions, it is observed that paragraph 8 of the plaint already
referred to obstruction of the petitioners’ easementary rights.
However, the specific relief of reconstruction of the sunshades was
not expressly claimed in the original plaint. The amendment, filed
after the commencement of trial, seeks to introduce a distinct and
specific relief, which goes beyond mere clarification. In such
circumstances, the trial court rightly applied Order II Rule 2 of
C.P.C., holding that a part of a claim omitted at the outset cannot
be revived without sufficient justification. The belated filing of the
amendment, after the trial had commenced, further underscores
the absence of adequate justification for disturbing the procedural
framework and the orderly conduct of the suit.
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13. The aforesaid view is corroborated by the ratio decidendi in
Noor Kabirdin Meghani & Ors. (supra), where the Bombay High
Court observed as under :-
“10. Proviso, to Order 6 Rule 17 mandates that no application for
amendment shall be allowed after commencement of trial, unless
Court comes to conclusion that in spite of due diligence, the parties
would not have raised the matter before the commencement of the
trial. Trial in the civil suit commences from the date of fling of
affidavits in lieu of examination-in-chief of the witnesses and,
therefore, proviso to Order 6 Rule 17 of the Code comes into play
only after fling of such of the affidavit in lieu of examination-in-
chief of the witnesses. In the back-drop of the facts of the case, it
cannot be said that plaintiff was unaware of the fact that the suit
premises were sub-let by the defendants. In fact, defendants in their
Written Statement categorically stated that they were sub-letting suit
premises to different parties with the consent and knowledge of the
plaintiff’s constituted attorney. Written statement was fled on 29th
November, 2004; whereas the application seeking leave to amend
the plaint was fled in January, 2019. As such, the averments of the
plaintiff in the application, to amend the plaint, that after his cross-
examination when he enquired with the mother about leave and
licence agreements with which he was confronted to, his mother
informed him that she did not remember as and when she had
signed aforesaid documents, was clearly after thought. Averments in
paragraph 5 of the application seeking leave to amend the plaint
are to be rejected on the face of it because in the Written Statement,
defendants had disclosed that they had sub-let the premises to
different parties under the leave and licence agreements with
consent of constituted attorney of the plaintiff. Under these
circumstances, the plaintiff’s assertion that he was unaware of the
fact of sub-letting and he perceived it, during his cross-examination
and, therefore, it constitutes subsequent events, is obviously
incorrect and to be rejected on the face of it. No doubt, that where
suit for ejectment of tenancy is fled on certain grounds, subsequent
addition of fresh ground in the plaint does not change the nature of
the suit and, therefore, amendment to add such new grounds is
permissible. In the case of Smt. Abnash Kaur v. Dr. Avinash
Nayyar, AIR 1975 Delhi 46, Full Bench of the Delhi High Court
has held that if a new ground for recovery of possession under Rent
Control Legislation arises after the fling of the petition then that can
also be combined with previously existing grounds. Landlord can
either fle new suit on these grounds or he may apply for amendment
in existing eviction petitions and urged this ground also. It is said
that in practice, it is undesirable for the landlord to pursue two
different petitions for eviction on different grounds and that he
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[2026:RJ-JD:15155] (7 of 8) [CW-11425/2025]the case in hand, the plaintiff had fled suit also on the ground of
sub-letting under Section 16(1)(e) of the Maharashtra Rent Control
Act. What is now sought to be added is a ground under Section
16(1)(m). The averments in the application seeking amendment to
the plaint is lacking the details of the rent allegedly charged by the
defendant was in excess of standard rent and permitted increases for
the premises sub-let by him. In fact, the ground for eviction
contemplated under Clause (m) of Section 16(1) could be said to be
available to the plaintiff when the suit was instituted and, therefore,
it is neither subsequent event nor a new ground for recovery of
possession that arose after fling of the suit.”
14. So far as contention in that Order II Rule 2 of C.P.C. does not
apply to amendments in an existing suit, is without merit. The
proposed amendment, filed after trial commenced, seeks a new
and specific relief of reconstruction of the sunshades which is
omitted in the original plaint. No sufficient justification has been
offered for the delay, and allowing it would disrupt the trial and
prejudice the respondents. The trial court therefore correctly
rejected the amendment under Order VI Rule 17 read with Section
151 of C.P.C.
15. The judgments in Life Insurance Corporation of India
(supra), Dinesh Goyal (supra) and Pankaja (supra) relied upon
by the petitioners, concern amendments allowed to clarify existing
claims or correct clerical errors without introducing new relief. In
contrast, the present amendment seeks to add a distinct relief
that was not originally claimed.
16. In these circumstances, the trial court’s order rejecting the
amendment under Order VI Rule 17 read with Section 151 of
C.P.C. cannot be said to be illegal, arbitrary or liable to
interference.
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17. The scope of interference under Article 227 of the
Constitution of India against an interlocutory order, is limited.
Unless the order suffers from patent illegality, perversity or
jurisdictional error, interference is not warranted.
18. The writ petition is accordingly dismissed.
19. The petitioners are at liberty to pursue their suit within the
framework of the pleadings already admitted, without prejudice to
any further evidence regarding the easementary rights already
claimed.
20. Stay petition as well as all pending application(s), if any,
shall also stand disposed of.
(MUKESH RAJPUROHIT),J
179-/Inder//-
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