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2003 DIGILAW 1179 (PNJ)

Mansi Devi v. Ram Kishan

2003-08-25

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition, filed under Article 227 of the Constitution of India is directed against the order dated 30.4.2003 passed by the Additional Civil Judge (Sr. Division), Jagadhri dismissing the application of the plaintiff-petitioner filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for brevity the Code) seeking amendment of the plaint. 2. The plaintiff filed a suit in the year 1994 seeking declaration to the effect that he is owner in possession of the suit land and the judgment and decree dated 26.3.1994 is illegal, null and void. Plaintiff-petitioner being father of the defendant-respondents have requested them to vacate the land in dispute but in vain. Thereafter, plaintiff has requested by an application under Order 6 Rule 17 of the Code to amend the plant by including the relief of possession with mesne profits. The application was contested by raising an objection that the proposed amendment is time barred as mesne profits have been claimed since 1994 and the plaintiff-petitioner could have claimed the same within a period of three years. It has further been pleaded that the amendment of the suit is inconsistent with the plea raised by the plaintiff-petitioner in para 3(ii) of the plaint wherein it is claimed that he is in possession of the suit land. The trial Court after hearing the parties dismissed the application on 30.4.2003 and the operative apart of the order reads as under: "Heard. After hearing the arguments at length, I am of the view that instant application under Order 6 Rule 17 C.P.C. is not maintainable. In view of the proceedings laid down under the amended CPC where it is provided that no application for amendment shall be allowed after the trial has commenced. Unless the court comes to the conclusion that inspite of the due diligence the party could not have raised the matter before the commencement of the trial. Admittedly, plaintiff is father of defendants and as per Civil Suit titled Ram Kishan v. Bhadu Ram, he has suffered the decree in favour of his sons by way of filing the admitted written statement and the decree was passed in view of his statement. Defendants are in possession of the suit property, subsequent upon passing the decree in the year 1994. This suit was filed on 22.7.1994 and at the time of filing this suit, defendants were already in possession. Defendants are in possession of the suit property, subsequent upon passing the decree in the year 1994. This suit was filed on 22.7.1994 and at the time of filing this suit, defendants were already in possession. The factor seeking possession of the suit property from the defendants was very much in the knowledge of the plaintiff at the time of filing the suit. This is not a new fact which has cropped up after the institution of the suit. The fact was not diligently disclosed which was already in existence before the commencement of the trial and therefore, I am of the view that this application for amendment cannot be allowed after the trial has already been commenced and the plaintiff was very much in the knowledge of fact that defendants are already in possession of the suit property. Hence, application stands dismissed." 3. Shri Mahavir Sandhu, learned counsel for the plaintiff-petitioner has argued that he has been dispossessed after the passing of the decree on 10.5.2000 and therefore the amendment has been necessitated. Learned counsel has tried to persuade me to take a view that the fact of dispossession has come into existence after the passing of the decree and could not have been to the knowledge of the plaintiff-petitioner oh the date of the filing of the suit. 4. After hearing the learned counsel at some length and perusing the impugned order, I do not feel persuaded to take a view different than the one taken by the trial Court because in the application mesne profits have been claimed w.e.f, 1994 which belies the stand of the plaintiff-petitioner that he has been dispossessed after the passing of the decree dated 10.5.2000. It has become evident that the plaintiff-petitioner was not in possession on the date when he filed the suit in 1994 and the fact that he was not in possession was in his knowledge. However, the plaintiff-petitioner preferred to claim the relief that he is owner in possession of the suit land and the judgment and decree dated 26.3.1994 is illegal, null and void. The amended provisions of Order 6 Rule 17 of the Code categorically provides that if the fact was within the knowledge of a party at the time of filing the pleadings then no amendment is to be allowed. The amended provisions of Order 6 Rule 17 of the Code categorically provides that if the fact was within the knowledge of a party at the time of filing the pleadings then no amendment is to be allowed. Order 6 Rule 17 of the Code, as amended, reads as under: "Order VI XX XX XX XXRule 17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as he may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: "Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party, could not have raised the matter before the commencement of trial." 5. If the view of the Civil Judge is examined in the light of the provisions of Order 6 Rule 17 of the Code it becomes patent that no amendment is permissible if the facts sought to be incorporated in the pleadings by amendment were already in the knowledge of the plaintiff-petitioner at the time of filing of the suit. It is, thus, evident that the plaintiff-petitioner was not in possession and this fact was within his knowledge and he ought to have pleaded. There is no explanation furnished for omission to plead that fact. Therefore, the revision petition is without any merit and is thus liable to be dismissed. For the reasons recorded above, this petition fails and the same is dismissed.