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2009 DIGILAW 1167 (PNJ)

Lallu v. Nirdosh Kumar

2009-07-16

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This revision-petition under Article 227 of the Constitution of India, for setting aside the order dated 02.06.2009, rendered by the Court of Civil Judge ( Junior Division ), Faridabad, vide which it allowed the application under Order 6 Rule 17 of the Code of Civil Procedure, has been filed Civil Revision by the petitioner. 2. The relevant facts, for the just decision of the revision petition, are that the defendant claiming himself to be the owner in physical possession of the property, in dispute,, entered into an agreement to sell dated 31.03.1994 with the plaintiff, in respect thereof, for a total sale consideration of Rs.45,000/-. According to the terms and conditions of the agreement to sell, the defendant was to get effected the necessary correction in the revenue record, in respect of the property, in question and thereafter to intimate the plaintiff. It was further stated that the sale deed was to be executed, within a period of two months, from the date of intimation. However, neither any intimation to the plaintiff, was given nor sale deed was executed, by the defendant/respondent in his favour. It was further stated that when the plaintiff approached the defendant, to execute the sale deed, the defendant wanted to alienate the suit land to some other person and tried to raise illegal construction over the same. Ultimately, a suit for permanent injunction was filed. 3. During the pendency of suit, an application for amendment of the plaint, was filed, by the plaintiff/applicant, for incorporating the relief of specific performance of contract/agreement to sell dated 31.03.1994 and in the alternative for recovery of the amount with interest. 4. The application for amendment was opposed by the defendant/respondent, on the ground, that the same was not essential for the just decision of the case. He also denied the execution of the agreement to sell and receipt of consideration. It was further stated that the claim, sought to be added by way of amendment, by the plaintiff, was barred by time. 5. After hearing the Counsel for the parties, and, on going through the documents, placed on record, the trial Court allowed the application, under Order 6 Rule 17 CPC for the amendment of the plaint, vide the order impugned. 6. Feeling aggrieved, the instant revision petition has been filed by the defendant/revision petitioner. 7. 5. After hearing the Counsel for the parties, and, on going through the documents, placed on record, the trial Court allowed the application, under Order 6 Rule 17 CPC for the amendment of the plaint, vide the order impugned. 6. Feeling aggrieved, the instant revision petition has been filed by the defendant/revision petitioner. 7. I have heard the Counsel for the revision-petitioner and have gone through the documents, on record, carefully. 8. The Counsel for the revision petitioner, submitted that, the claim sought to be raised by way of amendment by the plaintiff (respondent) was barred by time and, as such, the amendment could not be allowed. He further submitted that the amendment was not essential for the just decision of the case. He further submitted that as per the proviso engrafted to Order 6 Rule 17 of the Code of Civil Procedure, the amendment of plaint, could not be allowed, as the issues, in the suit, had already been framed, and, as such, the trial had already commenced. He further submitted that the order impugned suffers from patent illegality and, thus, was liable to be set aside. 9. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the revision-petitioner, in my considered opinion, the revision-petition, deserves to be dismissed, for the reasons to be recorded hereinafter. At the time of allowing the application for amendment under Order 6 Rule 17 of the Code of Civil Procedure, the Court is not required to go deep into the matter, so as to decide, whether the claim sought to be made, by way of amendment, was barred by time, or not. Such a question could be finally decided, at the time of final decision of the case. The amendment, in question, was essential for the just decision of the real controversy, between the parties, and it was rightly held so by the trial Court. As is evident from the order of the trial Court, only the issues have been framed, and no evidence has been recorded. Under these circumstances, the trial has not yet commenced. In this view of the matter, the proviso engrafted to Order 6 Rule 17 of the Code of Civil Procedure, is not applicable to the facts of the instant case. In Raj Kumar Gurawara (Dead) through L.Rs. v. M/s S.K. Sarwagi & Co. Pvt. Ltd. And Anr. Under these circumstances, the trial has not yet commenced. In this view of the matter, the proviso engrafted to Order 6 Rule 17 of the Code of Civil Procedure, is not applicable to the facts of the instant case. In Raj Kumar Gurawara (Dead) through L.Rs. v. M/s S.K. Sarwagi & Co. Pvt. Ltd. And Anr. AIR 2008(SC) 2303, the proviso of law, laid down, by the Apex Court, was that order 6 Rule 17 of the Code confers jurisdiction on the Court, to allow either party to alter or amend his pleadings, at any stage of the proceedings on such terms, as may be just. Such amendment seeking determination of the real question of controversy, between the parties, shall be permitted to be made. Pre-trial amendments are to be allowed liberally, than those which are sought to be made, after the commencement of the trial. It was further observed that in the former case, the opposite party, is not prejudiced because it will have an opportunity of meeting the amendment, sought to be made. It was further observed by the Apex Court that after the commencement of trial, particularly, after the completion of evidence, the question of prejudice to the opposite party may arise and, in such event, it is incumbent on the part of the Court, to satisfy the conditions prescribed in the proviso. The principle of law, laid down, in the said case, is fully applicable to the facts of the instant case. As stated above, the trial, in this case had not yet commenced when the amendment was allowed by the trial Court. The Counsel for the revisionpetitioner, however, placed reliance on Vidyabai & Ors. v. Padmalatha & Anr. 2009(1) Apex Court Judgments 689 (S.C) : 2009(1) Civil Court Cases 798 (S.C.) PLR 490 (SC), in support of his contention that the amendment could not be allowed after the trial has commenced. There is, no dispute, with the proposition of law, laid down, in the said case. The perusal of the facts of the said case, clearly goes to reveal that after framing the issues, an affidavit had already been filed, by the plaintiff in lieu of his examination in chief. There is, no dispute, with the proposition of law, laid down, in the said case. The perusal of the facts of the said case, clearly goes to reveal that after framing the issues, an affidavit had already been filed, by the plaintiff in lieu of his examination in chief. In these circumstances, the Apex Court, held that the amendment could not be allowed, in view of the proviso engrafted to Order 6 Rule 17 of the Code of Civil Procedure, as the trial had already commenced. The facts of the aforesaid case, thus, being distinguishable, from the facts of the instant case, no help can be drawn, by the Counsel for the revision petition, therefrom. The order impugned, is neither illegal nor suffers from any material irregularity, nor perversity and, therefore, the same does not warrant any interference, by this Court, in its revisional jurisdiction under Article 227 of the Constitution of India. 10. For the reasons recorded above, the revision-petition, being devoid of merit, must fail, and the same is dismissed.