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2010 DIGILAW 251 (CHH)

PREMCHAND AGRAWAL v. NARENDRA KUMAR VERMA

2010-10-19

PRASHANT KUMAR MISHRA

body2010
ORDER As per Hon'ble Shri Prashant Kumar Mishra, J. 1. The petitioner is aggrieved by the order passed by the trial court rejecting his application under Order VI Rule 17 of CPC for leave to amend the plaint. 2. The petitioner/plaintiff preferred the suit for the respondents/defendant's eviction from the suit premises some times in the month of November/December, 2002. The defendant submitted his written statement in July 2003, vide Annexure P-2 and thereafter issues were framed by the trial Court. The petitioner moved an application for framing additional issues under Order XIV Rule 5 of CPC in January 2005 on the submission inter alia that on a reading of the written statement, it would appear that the defendant has denied the plaintiff's title to the suit premises hence, an issue in this regard be framed. The application was rejected by the trial court by observing that there is no pleading in the plaint seeking eviction of the defendant on the ground of disclaimer of title. 3. The petitioner thereafter moved the subject application under Order VI Rule 17 of CPC in the month of March 2005 inter alia submitting that in para 1, 4, 7 and 12 of the written statement the defendant has denied the plaintiff's title to the suit premises and therefore it has become necessary for the plaintiff to amend the plaint to introduce para 8-A therein to plead that the plaintiff is also entitled to seek eviction of the defendant on the ground of disclaimer of title. The trial court has rejected the prayer for amendment in the plaint. 4. Shri Paranjpe, learned counsel for the petitioner would argue that the trial court has committed material irregularity in exercise of jurisdiction by rejecting application for amendment in the plaint which was based on events occurring after filing of the suit. He would submit that the trial court was not correct in saying that there is no denial of title in the written statement. 5. Shri Sushil Dubey. learned counsel appearing for the respondent has vehemently argued that in view of proviso to Rule 17 of Order VI of CPC an amendment cannot be allowed after commencement of trial and since in the present case the trial was fixed for recording evidence of the parties, the learned trial court was fully justified in rejecting the petitioner's/plaintiff's application for amendment in the plaint. 6. 6. In the matter of Vidyabai and others Vs. Padmalatha and another, the Supreme Court has held that the proviso to Rule 17 of Order VI of CPC creates an embargo on exercise of jurisdiction to grant an amendment -after the trial has commenced and that an amendment cannot be allowed unless the plaintiff succeeds in demonstrating that he could not have raised the pleadings, made in the proposed amendment before commencement of the trial inspite of due diligence. 7. In the present case the proposed amendment is to incorporate a new ground of eviction which has occasioned after filing of the written statement by the defendant, thus, undisputedly the subject matter of the proposed amendment could not have been pleaded by the plaintiff at the time of filing of the suit. 8. In the matter of M/s. Revajeetu Builders and Developers Vs. M/s. Narayanaswamy and Sons and others, the Hon'ble Supreme Court has laid down principles as to when an amendment in the pleadings can be considered and granted. Thus, it is settled law that an amendment in the pleadings can be allowed when the proposed amendment is necessary for complete and effective adjudication of the suit, it does not change the nature of the suit, the party is not withdrawing an admission already made in the pleading or that the proposed amendment is not mala fide or is not raising any plea which is barred by limitation. 9. In the present case, the plaintiff is only seeking to raise an additional ground of eviction and thus neither the nature of relief claimed in the suit is changed nor it will cause prejudice to the defendant. 10. In the opinion of this Court, the trial court was not justified in rejecting the prayer for amendment in the plaint which has been necessitated after filing of the written statement. The question whether the pleadings made in the written statement would or would not ultimately constitute a ground for eviction on the ground of denial of title is to be determined in the suit. The trial court has also committed an error by examining the merits of the amendment while observing that the defendant has not denied the title of the plaintiff. 11. The trial court has also committed an error by examining the merits of the amendment while observing that the defendant has not denied the title of the plaintiff. 11. In view of the above discussion, this court would hold that the trial Court has committed material irregularity in exercise of jurisdiction while rejecting the plaintiff's prayer under Order VI Rule 17 of CPC. 12. In the result, the petition succeeds and is allowed. The impugned order is set aside. Plaintiff's application under Order VI Rule 17 of CPC stands allowed. 13. No order as to cost. Petition Allowed.