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2011 DIGILAW 171 (MP)

Lala v. State of M. P.

2011-02-07

AJIT SINGH, SANJAY YADAV

body2011
JUDGMENT : Heard on admission. This plaintiffs' writ petition under Article 227 of the Constitution of India is directed against the order dated 25-11-2010 passed by Second Civil Judge Class-II, Harda, in Civil Suit No. 48-A/2010; whereby, an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 filed by the petitioners seeking amendment in the plaint has been rejected. The suit is for declaration and permanent injunction in respect of land bearing khasra No. 134/1, area 44.312 hectares, situated in villae Bichhapur Halka No. 11/17. During the pendency of said suit and at the stage when the petitioners have succeeded in avoiding to record evidence on commission for almost one year, an application under Order 6 Rule 17 of the Code of Civil Procedure was filed seeking leave of the Court to amend the plaint by incorporating the facts of pre-trial stage. The trial Court rejected the application by the W.P. No.2042.11 impugned order on the ground of delay and that there was no plausible explanation by the petitioners as to what prevented them from not incorporating those facts which were well with the knowledge of the petitioners. It is this order which is being questioned in this petition. The question is whether the trial Court was within its jurisdiction and justified in rejecting the application preferred by the petitioners seeking amendment in the plaint. Order 6 Rule 17 of the Code of Civil Procedure provides for :- "17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party o 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 question in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." The aforesaid provision and more particularly the proviso came up for consideration before the Supreme Court in the case of Vidya Bai and others V. Padmalatha and another: (2009) 2 SCC 409 . In paragraph 10 wherein, it is observed that, the proviso to Rule 17 is couched in a mandatory form. In paragraph 10 wherein, it is observed that, the proviso to Rule 17 is couched in a mandatory form. The Court's jurisdiction to allow such an application is taken away unless the conditions precedent therefore are satisfied viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial". It is further held in paragraph 19 that " 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 of its jurisdiction. The court's jurisdiction in a case of this nature is limited. Thus, unless the jurisdictional facts, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint". In the case at hand the petitioners have failed to demonstrate that despite of due diligence the facts they proposed to incorporate by way of amendment, were not within their knowledge when the suit was filed or even when the issues were framed and an order was passed for examining the witness on commission. In view whereof the trial Court in our considered opinion was well within its right in rejecting the application preferred by the petitioners seeking amendment in the plaint. Furthermore, since the scope of interference in writ jurisdiction under Article 227 of the Constitution of India is confined to the extent that subordinate courts remain within their bounds of authority (please see Waryam Singh V. Amarnath: AIR 1954 SC 215 & Shalini Shyam Shetty And Another V. Rajendera Shankar Patil : (2010) 8 SCC 329 ); and in the instant case since the trial Court was within its jurisdiction in rejecting the application as the same being not in consonance with the provisions of Order 6 Rule 17 of the CPC, we are not inclined to interfere with the impugned order. In the result petition fails and is hereby dismissed. No costs.