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Jharkhand High Court · body

2010 DIGILAW 582 (JHR)

Ayodhya Prasad Gupta v. Bhagwan Sharma

2010-05-10

D.N.PATEL

body2010
Order The present petition has been preferred against an order, passed by tile Additional Munsiff I, Ranchi, dated 16th July, 2009 in Title Suit No. 123 of 2004, whereby, the amendment application preferred by the present petitioner (original plaintiff) under Order VI Rule 17 to be read with Section 151 of the Civil Procedure Code has been dismissed. 2. I have heard learned counsel for the petitioner, at length, who has submitted that the petitioner is an original plaintiff, who has instituted Title Suit No. 123 of 2004, on the basis of a registered sale deed in favour of the original plaintiff and thereafter an amendment application was preferred by the petitioner under Order VI Rule 17 of the Civil Procedure Code as well as under Order I Rule 10 for joining the wife of the present petitioner as plaintiff No. 1 because the sale-deed upon which the original plaintiff is relying upon, is in the name of the wife of the plaintiff and so far as the amendment is concerned, certain other documents and certain facts were also to be brought to the notice of the trial court about the criminal proceedings taken place between the plaintiff and the defendants, which reveals the possession of the original plaintiff upon the suit property. 3. It is further submitted by the learned counsel for the present petitioner that trial court has dismissed this application mainly on the ground that in criminal proceedings there is already a final order, passed by the competent authority and, therefore, there is no need to amend the plaint, at all, but, the trial court has lost sight of the fact that while deciding the amendment application under Order• VI Rule 17 of the Civil Procedure Code, merit of the amendment is not to be seen, at all. Merit of the amendment can be seen only at the time of final hearing of the suit, in question. This aspect has not been appreciated and hence, the impugned order deserves to be quashed and set aside. 4. When the matter is called out, no body appears on behalf of the respondents though they have filed their counter-affidavit. 5. Merit of the amendment can be seen only at the time of final hearing of the suit, in question. This aspect has not been appreciated and hence, the impugned order deserves to be quashed and set aside. 4. When the matter is called out, no body appears on behalf of the respondents though they have filed their counter-affidavit. 5. Having heard learned counsel for the petitioner and looking to the counter-affidavit, filed by the respondents, I hereby, quash and set aside, the order, passed by the Additional Munsiff I, Ranchi, dated 16th July 2009 in Title Suit No. 123 of 2004, mainly for the following facts and reasons:- (i) It appears that the present petitioner is an original plaintiff, who has instituted Title Suit No. 123 of 2004, before the Court of Munsiff I, Ranchi. The title suit is based upon a registered sale-deed in favour of the present petitioner. (ii) It further appears from the facts of the case that the evidence of the plaintiff's side was not even started and an application was preferred under Order I Rule 10 of the Civil Procedure Code, wherein, it has been pointed out that the sale-deed upon the original plaintiff is putting his reliance is in the name of his wife namely Smt. Rukmini Devi and, therefore, this application was filed to join Smt. Rukmini Devi, who is the wife of the present petitioner as plaintiff No. 1 as the sale-deed is in favour of this party namely Rukmini Devi and thus, she ought to have been joined as the plaintiff to the suit. This aspect of the matter has not been properly appreciated by the trial court. (iii) It also appears that an application under Order VI Rule 17 of the Civil Procedure Code has been preferred, whereby, three amendments, as stated in Paragraph 11 (I, II and III) were sought to be amended, as per amendment, which is at Annexure-4 to the memo of petition. Looking to this amendment, it cannot be said that the whole nature of the suit will be changed nor it can be said that anything prejudice is going to be caused to the original defendants. Moreover, plaintiff's side evidence has not yet been started. Thus amendment application under Order VI Rule 17 has been preferred at much initial stage of the suit proceedings. Moreover, plaintiff's side evidence has not yet been started. Thus amendment application under Order VI Rule 17 has been preferred at much initial stage of the suit proceedings. (v) It further appears from the impugned order that the trial court has unnecessarily gone into the merits of the amendment. It ought to have been kept in mind by the trial court that whenever any amendment application is preferred under Order 6 Rule 17 of the Civil Procedure Code, merits of the amendment is not to be seen, at ail. That can only be looked into at the time of final hearing of the suit. Looking to the nature of the amendment, which the original plaintiff is seeking, it cannot be said that the whole nature of the suit will be changed. On the contrary, by allowing this amendment application it will facilitate the trial court in arriving at a correct decision about the dispute between the parties. Whether by way of criminal proceedings any issue has been settled or not that cannot be prejudged by the trial court, when an application under Order-6 Rule-17 is to be decided. This aspect of the matter has not been properly appreciated by the trial court, which is an error apparent on the face of the record. 6. As a cumulative effect of the aforesaid facts and reasons, I hereby, quash and set aside the 'order, passed by the Additional Munsiff I, Ranchi dated 16th July, 2009 in Title Suit No. 123. of 2004, (Annexure-4 to the memo of petition) and the application, preferred by the present petitioner under Order-1 Rule 10 of the C.P.C. below an application under Order VI Rule 17 of the Civil Procedure Code are hereby, allowed with a cost of Rs. 5001-, which will be deposited by the original plaintiff and which will be allowed to be withdrawn by defendant upon proper application. 7. Accordingly, this writ petition is allowed and disposed of.