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2006 DIGILAW 1017 (ALL)

ALI JAN v. IInd ADDITIONAL DISTRICT JUDGE

2006-04-17

BHARATI SAPRU

body2006
JUDGMENT Honble Bharati Sapru, J.—The petitioner has filed the present writ petition against an order dated 31.1.2000 passed on the petitioner’s application under Order VI Rule 17 by which the petitioner sought to amend his plaint. 2. The facts are that the petitioner had filed an original suit No. 564 of 1995 with a prayer for a decree for cancellation of sale deed registered on 26th May, 1995. There was also a prayer for perpetual prohibitory injunction in the suit restraining the defendant, their agents and servants, from interfering with the possession of the plaintiff over their respective agricultural plots. 3. The suit was in the progress at the stage of examination of evidence. At this stage, the petitioner moved an application under Order VI Rule 17 read with Order Rule 10 of the C.P.C. making a request therein to implead the names of certain persons. The other prayer was to change the word pumping set to “Dunlup Gadi”. 4.The trial Court, vide its order dated 30.7.99 rejected the application for amendment on the ground that the petitioner was seeking to fill-up the lacunas in his case and the person who are sought to be impleaded were not necessary parties. Against the order of the trial Court dated 30.7.99, the petitioner, then preferred a revision and the Revisional Court also came to the conclusion that the amendment of the petitioner was not liable to be allowed. It is this revisional order dated 31.1.2000 which is being judicially reviewed in the present writ petition. 5. Learned Counsel for the petitioner has argued that it has been the constant view of the Hon’ble Apex Court that an amendment can be sought and is permissible even at the appellate stage and has argued that because the Court below has not considered the application of the petitioner properly, it has committed a manifest error of law by rejecting the said amendment application. He has also argued that the Court should have taken a casual view in passing the order of amendment and if the amendment were allowed, it would cause no prejudice to the defendants. He has also argued that the Court should have taken a casual view in passing the order of amendment and if the amendment were allowed, it would cause no prejudice to the defendants. Learned Counsel for the petitioner has relied on a decision of the Hon’ble Supreme Court in Pankaja and another v. Yellappa and others, (2004) 6 SCC 415 wherein the Hon’ble Supreme Court has given its dictum on the scope and manner in which the discretion is to be exercised while dealing with an application under Order VI Rule 17 and has held that the amendment subserving the ultimate cause of justice and avoiding further litigation should be allowed. 6. The Hon’ble Apex Court held that the discretion of the Court while exercising its jurisdiction under these provisions depends on the facts and circumstances of each case and has to be exercised in a judicious manner. In this case the petitioner had already laid down necessary factual basis in the plaint to the title which was being denied by the respondent in his written statement and, therefore, nothing new was sought to be adduced in that case and it was in those circumstances, that the Hon’ble Apex Court held that such an amendment ought to have been allowed. 7. In reply to the petitioner’s argument, learned Counsel for the respondent has argued that the facts in the present case are completely different. The amendment, which has been sought by the petitioner, would definitely prejudice the case of the defendant, as the amendment was sought to be made after the evidence and when the matter stood concluded. The petitioner had sought the impleadment of certain persons, which was neither necessary nor relevant for determining the question of controversy in the suit and in fact, by way of proposed amendment, the petitioner wanted to fill-up the lacunas, which had surfaced during the evidence. Whereas, firstly in the evidence, it was stated that the defendants had a pumping set. Later on, the version was being changed that the defendant wanted to buy a ‘Dunlap Gady’ and, therefore, in order to obtain a loan, had gone with the plaintiff and had executed the said sale deed. Learned trial Court as well as the Revisional Court had both examined this aspect of the matter and have clearly recorded the finding that the pleadings and evidence are contradictory in nature. Learned trial Court as well as the Revisional Court had both examined this aspect of the matter and have clearly recorded the finding that the pleadings and evidence are contradictory in nature. This is recorded in paragraph-7 of the Revisional Court’s order. 8. Learned Counsel for the respondent in support of his contentions has cited AIR 1967 Orissa 58, Khali and others v. Sadhaba Bewa and others. He has also cited AIR 1978 SC 79. 9. He has also cited AIR 1978 S.C. 798 , Haji Mohammed Ishaq Wd S.K. Mohammed and others v. Mohamed Iqbal and Mohamed Ali and Co.; JT 2000(10) SC 59, R. Narsimha Reddu v. Rondla Narsi Reddu and others; 2006 (1) AWC 343, Sadiq Ali alias Sadaq Ali and another v. Smt. Murti Devi and others; 2006(1) ARC 757 , Rama Shanker Kesari alias Patali v. 1st Additional District Judge, Sonebhadra and others. All these judgments reflect that an amendment cannot be sought where it would result in the setting up on a completely new case and seek to introduce evidence which is contradictory to pleadings and admissions made earlier by the party. 10. Learned Counsel for the respondent has also drawn the attention of this Court to a decision of the Hon’ble Supreme Court as reported in AIR 2005 SC 3353 , Salem Advocate Bar Association, Tamil Nadu v. Union of India in which the learned Counsel for the respondent has placed reliance in paragraph-27 thereof, which is interpretation of the proviso added to Order VI Rule 17 in the-year 2000. Learned Counsel for the respondent has also relied in another decision of the Hon’ble Supreme Court in the case of Union of India v. Pramod Gupa and others, 2005(9) SRJ 170 in which also the Hon’ble Supreme Court has stated in paragraph -144 of that decision viz., whether by reason of such amendment the claimant intends to resile from an express admission made by him. In such an event, the application for amendment may not be allowed. 11. Having heard learned Counsel for both the parties, I am of the opinion that the amendment sought by the petitioner was not only delayed but also with an intention to resile from the earlier evidence and the evidence which had been given by him earlier would definitely be contradictory to the amendment which he was seeking. 11. Having heard learned Counsel for both the parties, I am of the opinion that the amendment sought by the petitioner was not only delayed but also with an intention to resile from the earlier evidence and the evidence which had been given by him earlier would definitely be contradictory to the amendment which he was seeking. In my opinion, both the Court below committed no illegality in dismissing the petitioner’s application for amendment. 12. In the facts and circumstances of the case, both the Courts below committed no error or illegality in coming to the conclusion that the amendment should be rejected. 13. I confirm both the orders of the Court below. The suit, which has been kept in abeyance will be re-opened immediately upon placing a certified copy of this judgment. The suit itself may be disposed of expeditiously, preferably, within a period of two years and no frivolous adjournments shall be granted to either side during the course of hearings before the Trial Court. 14.The writ petition is dismissed. But there will be no order as to costs. Petition Dismissed. ———