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2009 DIGILAW 3278 (ALL)

MUSTZAB KHAN v. SHRI ARVIND KUMAR MITTAL

2009-10-14

RAJES KUMAR

body2009
Judgment Hon’ble Rajes Kumar, J.—Heard learned counsel for the parties. 2. By means of the present petition the petitioners are challenging the order dated 23.9.2009, passed by the Additional District Judge, Court No. 1, Bijnor, by which the revision filed by the petitioners against the order of the Civil Judge (Sr. Divn.), Bijnor, in O.S. No. 591 of 2000 rejecting the application for the amendment in the written statement has been dismissed. 3. The brief facts of the case are that the respondents filed a suit No. 591 of 2000 for permanent injunction restraining the defendant petitioners from interfering with the peaceful possession of the plaintiff respondents. The claim of the petitioners was based on the sale deed executed in 1971 in respect of the property in dispute in their favour by the father of the petitioners. The petitioners filed written statement. It appears that the respondents have filed an application for mutation on 31.1.2008. The mutation application has been allowed ex parte. The petitioners moved an application for recalling of the order. The said application has been rejected, against which the petitioners filed a revision, which has also been rejected as not maintainable. The petitioners further filed Civil Misc. Writ Petition No. 47453 of 2009, which has been rejected by this Court on 7.9.2009. The petitioners then moved an application on 21.7.2009 for the amendment of the written statement. The amendment sought was that the plaintiffr espondents have moved the application for mutation after a long time which raises doubt about the execution of the sale deed, apart from taking the various allegations in respect of the mutation proceedings. The said amendment application has been rejected by the Civil Judge (Sr. Divn.), vide order dated 1.9.2009. The petitioner filed Revision No. 74 of 2009, which has been rejected by the impugned order dated 23.9.2009. The Additional District Judge has held as follows : “I have gone through the principles laid-down in these case-laws. The said amendment application has been rejected by the Civil Judge (Sr. Divn.), vide order dated 1.9.2009. The petitioner filed Revision No. 74 of 2009, which has been rejected by the impugned order dated 23.9.2009. The Additional District Judge has held as follows : “I have gone through the principles laid-down in these case-laws. I am fully agreed with the submission of learned counsel for the revisionist that the amendment should have been taken liberally at any stage and delay would not cause any prejudice, but here in the matter in hand the besought amendment is of no help to the Court or it does not help the Court on reaching best conclusion rather the conduct of revisionists, as is evident from the record, shows that they are trying to prolong the disposal of the suit and their intention proves that they do not want to let the Court decide the suit. The mutation proceedings do not affect the rights of plaintiffs. The plaintiffs claimed themselves to be the owner in possession of disputed property on the basis of sale-deed dt. 30.10.71, and learned Court below rightly held that the existence of rights of plaintiffs depends on the point of validity of sale-deed dt. 30.10.71 and the suit of plaintiff is not the slave of entry of revenue record. So far as this contention is concerned that amendment may be allowed at any stage of suit it is right that amendment may be brought on record at any stage, but if the besought amendment is must and necessary for taking decision on each and every issue. It is also right that delay cannot be the ground of denying amendment, but that amendment should have been genuine one. But here the besought amendment appears to be mala fide in nature as it was brought at the stage of hearing arguments on very weak and juvenile ground which does not affect the suit nor it does not assist the Court on reaching best conclusion. If the amendment is allowed, it would not assist the Court in adjudication on merits rather allowing of amendment would help the defendants in prolonging the disposal. As such, the revisionists cannot obtain the benefit of case-laws submitted by them at the stage of revision because the facts and circumstances involved in these case-laws are entirely different from the case in hand. As such, the revisionists cannot obtain the benefit of case-laws submitted by them at the stage of revision because the facts and circumstances involved in these case-laws are entirely different from the case in hand. The impugned order is just and proper and has been passed within the jurisdiction of learned Court below and by way of this revision it requires no interference. This civil revision has no force.” 4. Learned counsel for the petitioners submitted that under Order VI Rule 17, C.P.C. the amendment can be made at any stage of the proceeding. He further submitted that liberal view should be taken in allowing the amendment in the written statement. In support of the contention he relied upon the decision of the Apex Court in the case of Usha Balashaheb Swami and others v. Kiran Appaso Swami and others, AIR 2007 SC 1663 . He submitted that the amendment sought in the writ petition has a material bearing to decide the real issue of the suit. Therefore, the amendment ought to have been allowed. 5. Learned counsel for the respondents submitted that the mutation proceeding is summary proceeding and has no bearing to the real issue involved in the suit, viz. whether there was existence of a valid sale-deed or not and whether the respondents have a valid possession over the property in dispute. He submitted that the amendment can only be allowed if the amendment is necessary to adjudicate the real question involved in the suit. If the amendment sought is not necessary to adjudicate the real question the same should not be allowed. He submitted that in the present case the Additional District Judge has held that the amendment application has been moved with a mala fide intention to delay the decision in the suit and the amendment sought does not affect the suit nor it assist the Court on reaching the best conclusion and if the amendment is allowed, it would not assist the Court in adjudication on merits. In support of the contention he relied on para 16 of the same decision as relied upon by learned counsel for the petitioners. 6. Having heard learned counsel for the parties, I have perused the impugned orders. Order VI Rule 17, C.P.C. reads as follows : “17. In support of the contention he relied on para 16 of the same decision as relied upon by learned counsel for the petitioners. 6. Having heard learned counsel for the parties, I have perused the impugned orders. Order VI Rule 17, C.P.C. reads as follows : “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 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 in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 7. A perusal of Order VI Rule 17, C.P.C. shows that amendment can only be allowed if it is necessary for the purpose of determining the real questions in controversy between the parties. The Apex Court in the case of Usha Balashaheb Swami and others (supra) has held as follows : “16. From a bare perusal of Order 6 Rule 17 of the Code of Civil Procedure, it is clear that the Court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties. The proviso to Order 6 Rule 17 of the Code, however, provides that no application for amendment shall be allowed after the trial has commenced unless the Court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. However, proviso to Order 6 Rule 17 of the Code would not be applicable in the present case, as the trial of the suit has not yet commenced.” 8. It is true that the amendment can be allowed at any stage of the proceeding and liberal view should be taken but the amendment can be allowed only if the amendment sought is necessary to adjudicate the real issue involved. It is true that the amendment can be allowed at any stage of the proceeding and liberal view should be taken but the amendment can be allowed only if the amendment sought is necessary to adjudicate the real issue involved. The amendment has been sought relating to the mutation proceedings which has been held to be not material and would not assist in coming to the conclusion in the suit. In the suit the real issue involved is whether the sale deed executed in 1971 in favour of respondent No. 2 are valid sale deed and whether they are legally in possession of the property in dispute. It is settled principle of law that the mutation proceeding is only a summary proceeding and does not decide the title on the property. Therefore, in my view, the Court below has rightly held that the amendment sought is of no assistance to decide the real issue of the suit. 9. In view of the above the petition has no merit and is, accordingly, dismissed. ————