Amendment to the plaint whether liable for court fees if ownership rights not claimed.
Sadanand B. Panchal
(Querist) 02 October 2012
This query is : Resolved
Respected Experts,
I have filed a Civil suit for obtaining injunction order against Defendants from obstructing my right of way and also for declaration that the Defendants have no right whatsoever to obstruct my right of way. In my Plaint I initially referred that Defendant as owner of land. Subsequently after my ad-interim reliefs refused by the Hon’ble Court, I found that the Defendant is not the owner of the land in question and also obtained certified copy of the order of Hon’ble City Civil Court (Same Court) in the matter of one landlord V/s. the Defendant showing the Defendant was/is not the owner of the land. Now I am going to amend my Plaint by inserting words “Now I found that the Defendant is not the owner of the land and therefore has no right to continue any construction activity on my right of way.” and also inserting prayer “that this Hon’ble Court may declare that the Defendant being not the owner of the land has no right to obstruct Plaintiffs right of way”
Please explain me whether the above referred amendment will change the nature of the Suit or the Suit will become liable for dismissal?
If no, please explain me whether I will have to pay Court fee? Under what extent?
I am not claiming to be owner of the land and claiming to be co-owner of the room occupied by me.
Since I have filed the Suit in person, therefore I require this advice.
Regards,
Sadanand B. Panchal
Sadanand B. Panchal
(Querist) 03 October 2012
Respected Advocate Mr. Rajeev,
Thanks a lot.I appreciated your opinion.
I may require the opinion of any other Lawyer member without disturbing your valuable help.If it is possible please inform me the equivalent citations to my case.
Regards,
Sadanand B.Panchal
prabhakar singh
(Expert) 03 October 2012
If your statement "I have filed a Civil suit for obtaining injunction order against Defendants from obstructing my right of way and also for declaration that the Defendants have no right whatsoever to obstruct my right of way." reads correctly then NO CHANGE IN NATURE OF SUIT IS GOING TO TAKE PLACE as all that you claim before or after the amendment is a RIGHT OF WAY OVER THE LAND IN DISPUTE FOR WHICH YOU NEED TO ESTABLISH THAT LAND IN DISPUTE IS A 'WAY'.
But is it a public way or a common way of a few people or your claim is based on easement of necessity or prescription is not clear from your query.
I do not agree tothis kind of a prayer clause" “that this Hon’ble Court may declare that the Defendant being not the owner of the land has no right to obstruct Plaintiffs right of way”"
The relief should be that of perpetual injunction against the defendant restraining him for ever to interfere into your right to use the land in dispute as an way to your house either by raising constructions or creating any kind of obstruction by himself or by his any agent,worker or employee.
No additional court fees is attracted as court fee must have been already paid for injunction which only requires to be suitably worded.
A negative declaration that defendant is not owner should not be the relief clause.
It is sufficient to incorporate in the body of the plaint for which a decree of the court is already there you need just to file a certified copy of that in this case.
You are advised to addressed your self as plaintiff and your opponent as defendant every where in the plaint.
The use of pronouns I or HE Or YOU and first persons sentences are deliberately avoided in court drafts just to avoid several confusions they create.
Sadanand B. Panchal
(Querist) 03 October 2012
Respected Expert Shri Prabhakar Singh,
Firstly I am thankful for your valuable advice.As I already stated in my query that my ad-interim relief was refused. It was refused on the ground that the Hon'ble Court supposed as per my Plaint the Defendant as an owner of the land. It was not informed in my query by me that the Defendant in order to defeat me had given an undertaking to the Court that the said Defendant will temporarily block the right of way for excavation of the land on right of way for construction of the underground water tank and underground basement and drive way for the Society.The Defendant also undertaken to give alternate right of access through a building under construction and thereafter undertaken to give unobstructed right of way through the Ramp on original right of way.When I refused the undertaking the Hon'ble Court accepted undertaking refusing my ad-interim reliefs on the ground that Hon'ble High Court had already accepted the undertaking in the matter of landlord. I could not filed Appeal because the Developer had immediately excavated the land below to the rock. Now I found that the defendant had no right to excavate the earth not being owner and also the entire land is an agricultural land.No N.O.C. from collector taken for excavation.
Please explain me how can I take land restored to original condition in my right of way suit.It is rare case that any body can remove earth for constructing Ramp (Cement slab) and gave a right of access through the Ramp. Ramp is not long life arrangement for easement.
Please provide me a solution.
Regards,
Sadanand B. Panchal
Sadanand B. Panchal
(Querist) 04 October 2012
Respected Experts,
Honour Shri Prabhakar Singh have given me a valuable thinking to amend my Plaint.
But this query is open due to my question remained unanswered. When I found that the Defendant is not owner of the land in question by going through a conveyance deed of Defendant which shows that the original owner had sold out the entire land save and excepting our easements,(Water, light,Sewer, Drain and particularly Right of ways to our Chawl from the Road.therefore I want to amend the Plaint that Defendant being not owner of land where Plaintiffs easementary right exists. I want to establish that the Defendant is not the owner of part of the land which includes Plaintiffs easements.Suppose if it is require as per Court fees Act to pay Court fees if any, can I maintain amendment and thereafter pay Court fees? Please advice me.
Regards,
Sadanand B. Panchal
adv. rajeev ( rajoo )
(Expert) 02 October 2012
