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2010 DIGILAW 1008 (JHR)

Kiran Tigga v. GEL Church, a society regis

2010-11-19

R.R.PRASAD

body2010
Order This writ application is directed against the order dated 21.11.2009 passed by the then Additional Munsif-III, Ranchi in Title Suit No. 28 of 1995 whereby amendment sought for by the plaintiff was allowed. 2. Having heard and on perusal of the record, it does appear that the plaintiff has brought a suit for declaration of its right, title and interest over an area measuring 8 decimals of land having 3 rooms and other structures. At the same time recovery of its possession has also been sought for. 3. Defendant-petitioner on putting appearance did file written statement and after the issues were framed, the plaintiff adduced its witnesses. On closure of the case of the plaintiff, case was fixed for adducing evidence on behalf of the defendant. Accordingly, evidence of one of the witnesses was given on affidavit. At that point of time, an application under Order VI Rule 17 was filed on behalf of the plaintiff praying therein to allow it to incorporate facts in the plaint about the construction of some structure over the land in suit property during the pendency of the suit. At the same time, name of the village and also the police station as well as boundary of the suit property were also sought to be corrected. The defendant by filing rejoinder raised objection keeping in view the proviso to Order VI Rule 17 by stating that amendment cannot be made as the plaintiff has closed its case. That apart, assertion made on behalf of the plaintiff regarding construction over the suit land was also denied. 4. Having heard learned trial court after taking into consideration the facts and circumstances and after holding that the amendment sought for would not cause injustice to the defendant, allowed the prayer for amendment. 5. Being aggrieved with that order, this writ application has been preferred. 6. Mr. Manoj Tandon, learned counsel appearing for the petitioner by drawing attention particularly to the proviso appended to Order VI Rule 17 submitted that once the trial reached to the stage of hearing, amendment cannot be allowed unless the court gives finding to the effect that in spite of due diligence, the party could not have raised the matter before the commencement of trial and since no such finding has been recorded, the impugned order cannot be sustained and hence, it is fit to be set aside. 7. 7. Learned counsel in this respect further submitted that Order VI Rule 17 is couched in a mandatory form and hence, unless the court comes to the conclusion that jurisdictional fact as envisaged therein is existing, the court will have no jurisdiction at all to allow the amendment of the plaint. 8. Learned counsel in support of his submission has referred to a decision rendered in a case of Vidyabai and Others vs. Padmalatha and Another [ (2009)2 SCC 409 ]. 9. Upon hearing and on perusal of the record, it does appear that the plaintiffs sought for amendment relating to construction of a building over the suit land on assertion that the said construction was made during the pendency of the suit which the plaintiff came to know just before a week. At the same time, it was also stated that name of the village and the police station where the suit property is situated has incorrectly been mentioned which was detected recently by going through the official record of the plaintiffs' society. These facts were sufficient for the court to use jurisdiction as envisaged in proviso to under Order VI Rule 17 and as such, the trial court cannot be said to have committed jurisdictional' error in allowing the amendment. 10. It is true that no finding regarding jurisdictional fact has been recorded but the facts are as such which glaringly depict about the jurisdictional fact as envisaged under Order VI Rule 17. In that view of the matter, the order passed by the trial court never seems to be inconsonance with the ratio laid down by the Hon'ble Supreme Court in the case referred to above wherein it has been held in paragraph 19 as follows: "It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties, Only if such a condition is fulfilled, the amendment is to be allowed. However proviso appended to Order 6 Rule 17 of the Code restricts the power of the court It puts an embargo on exercise ,,'i Its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint." 11. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint." 11. Keeping in view all these aspects of the matter, I do not find any jurisdictional error in the order impugned. Accordingly, this writ application is dismissed.