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2012 DIGILAW 1336 (RAJ)

Raghuveer Singh v. Sukhdev Singh

2012-05-21

GOPAL KRISHAN VYAS

body2012
JUDGMENT 1. - In this writ petition filed under Article 227 of the Constitution of India, the petitioner has prayed for quashing impugned order dated 28.4.2012 passed by the Addl. District Judge, Srikaranpur in Civil Suit No. 18/2010, by which application filed by respondent No. 1 under Order 6 Rule 17, C.P.C. was allowed. 2. As per facts of the case, the petitioner filed civil suit seeking declaration in terms that sale-deed dated 1.1.2009 executed by the Municipal Board in favour of respondent No. 1 may be declared null and void. Further, the petitioner sought relief for specific performance of contract. 3. In the suit, after filing reply, the trial Court settled issues on the pleading on 21.7.2011 and, settlement of issue respondent No. 1 ought amendment in the written statement. Learned trial Court allowed the application filed under Order 6 Rule 17, C.P.C., vide order dated 12.4.2012, which is under challenge in this writ petition. 4. Learned counsel for the plaintiff-petitioner submits that the trial Court has committed illegality in allowing the application for amendment in the written-statement because the reasons given for allowing the application are not proper and sustainable in law. The trial Court simply observed that if the application is not allowed multiplicity of litigation will take place, however, the reason assigned is not sufficient reason to allow the application under Order 6 Rule 17, C.P.C. therefore, the order impugned may be quashed. 5. Learned counsel for the petitioner submits that amendment which is sought by the application in the written-statement was within the knowledge of the respondent while filing reply to the suit which is apparently clear from para 8 of the reply, which, stand was taken by the defendant-respondent that provisions of Transfer of Property Act is not applicable and lease-hold is governed by the provisions of the Government Grant Act. When specific plea was already taken then there was no question of entertaining the application filed under Order 6 Rule 17, C.P.C. in casual manner, therefore, the order impugned deserves to be quashed. 6. Learned counsel for the petitioner-plaintiff further argued that amendment cannot be allowed to made in the written-statement simply with a view to filling up lacunae. When specific plea was already taken then there was no question of entertaining the application filed under Order 6 Rule 17, C.P.C. in casual manner, therefore, the order impugned deserves to be quashed. 6. Learned counsel for the petitioner-plaintiff further argued that amendment cannot be allowed to made in the written-statement simply with a view to filling up lacunae. Learned trial Court is under obligation to consider the grounds taken by the parties before passing the order; but, without dealing with the grounds raised by the petitioner impugned order has been passed which is totally illegal. Learned trial Court has committed grave error in allowing application for amendment after one and a half years, therefore, the order impugned may be quashed. In support of his contentions learned counsel for the petitioner invited my attention towards judgments of the Hon'ble Supreme Court reported in (2006) 12 SCC 1 , Ajendraprasadji N. Pandey & Anr. v. Swami Keshavprakashdasji & Ors. , (2008) 14 SCC 364 , Rajkumar Gurawara (Dead) through LR's v. S.K. Sarwagi and Company Pvt. Ltd. & Anr. and (2009) 2 SCC 409 , Vidyabai & Ors. v. Padamalatha & Anr. While adverting to the cited judgments it is submitted by learned counsel for the petitioner that at the time of deciding application for amendment in the written-statement, the basic parameters enumerated under Order 6 Rule 17, C.P.C., are required to be taken into consideration; but, without considering the basic parameters the trial Court has allowed the application for amendment, therefore, the order impugned may be quashed. 7. After hearing learned counsel for the petitioner I have perused Rule 17 Order 6 of the Code of Civil Procedure. Rule 17 reads as under; "17. Amendment of pleading. - 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 inspite of due diligence, the party could not have raised the matter before the commencement of trial." 8. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial." 8. Upon perusal of Order 6 Rule 17, C.P.C., it is abundantly clear that there is power left with the Court to allow amendment at any stage on such terms as may be just and proper to determine the real question in controversy in between the parties. Although there is proviso under Rule 17 that no application for amendment shall be allowed after the trial commenced unless the Court comes to the conclusion that the party has raised or inspite of due diligence could not have raised the matter in the suit or proceeding before the commencement of the trial. 9. I have examined the order impugned in the light of the aforesaid provision. Admittedly, in the application Filed by the respondent-defendant under Order 6 Rule 17, C.P.C., it is specifically pleaded that following para 20 may be added after para 19 of the written-statement, which reads as under: " 20- ;g fd vgkrk la[;k 951 okds bUnzk dkWyksuh ineiqj dk ikfydk }kjk tkjh iV~Vk xouZesUV xzkUV ,DV ds rgr tkjh fd;k x;k gS] ftl ij laifRr vUrj.k vf/kfu;e ds izko/kku ykxw ugha gksrs] blfy;s nkok oknh iks"k.kh; ugha gSaA " Upon perusal of the above para it is abundantly clear that in this para it is pleaded that in view of the fact that provisions of the Transfer of Property Act are cot applicable, therefore, the suit is not maintainable; and in the written-statement in para 8, although it is mentioned that provisions of the Transfer of Property Act are not applicable and lease-hold is Government by the Government Grants Act; but, it is not specifically mentioned that suit is not maintainable, therefore, the application for amendment was filed and allowed by the trial Court. 10. In my opinion, when plea has already been taken and, only to clarify the position in specific terms, if the amendment is sought and allowed by the trial Court, then, it cannot be an illegality; more so, it is in the interest of both the parties to adjudicate the matter. 10. In my opinion, when plea has already been taken and, only to clarify the position in specific terms, if the amendment is sought and allowed by the trial Court, then, it cannot be an illegality; more so, it is in the interest of both the parties to adjudicate the matter. In this view of the matter, all the judgments cited by learned counsel for the petitioner do not support the contention of the petitioner that there was no reason to allow the application filed under Order 6 Rule 17, C.P.C. It appears that for just decision in the case it is felt necessary by the trial Court to allow the amendment application, therefore, the order impugned does not require any interference on this ground.With regard to delay in filing such application, the trial Court has already Imposed cost of Rs. 1,500/- for allowing the amendment application. Therefore, in my opinion, the order is just and reasonable in the facts and circumstances of the case. In view of the above, no case is made out for interference in exercise of jurisdiction under Article 227 of the Constitution of India.Hence, this writ petition is accordingly dismissed.Petition dismissed. *******