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2012 DIGILAW 1557 (JHR)

Om Prakash Agrawal v. Kamla Prasad Gupta

2012-10-31

P.P.BHATT

body2012
ORDER Heard the learned counsel for the parties. 2. The petitioner, by way of filing this petition under Article 227 of the Constitution of India, has prayed for quashing and setting aside order dated 18.1.2011 passed in Title Suit No. 21/2003 by the learned Sub-Judge-I, Bermo at Tenughat, whereby the prayer made on behalf of the plaintiff for allowing to amend the plaint by filing a petition dated 21.2.2009 under Order 6 Rule 17 read with section 151 C. P.C. Has been allowed. 3. The learned counsel for the petitioner submitted that application for amendment was submitted by the plaintiff at belated stage under the pretext of some typographical mistakes and to bring certain facts, which are necessary for determination of the real issue before the Court. It is also submitted that the issues were finalized in the year 2004 and the matter is required to be decided on the basis of issues which have been framed in the suit. However, the Court below allowed the amendment application, which is contrary to the provisions contained under Order 6 Rule 17 of the Code of Civil Procedure. It is also submitted that the written statement was filed on 9th September 2004 and thereafter, issues have been finalized in the year 2004 and the plaintiff's evidence has been closed on 23rd February 2007 and therefore, the interest of defendant is likely to be prejudiced as the defendant will not have an opportunity to cross-examine the plaintiff's witnesses on the additional facts brought by way of amendment petition. It is further submitted that the Title Suit has been filed by the plaintiff seeking recovery of possession and now the plaintiff is coming with a new fact, which is inconsistent with the original pleadings and, therefore, such amendment should not be allowed. However, the learned court below has not properly considered this crucial point while allowing the amendment petition. It is further submitted that the respondent-plaintiff miserably failed to indicate or justify the due diligence, as required under the proviso under Order 6 Rule 17 CPC. The learned counsel for the petitioner cited the following judgments in support of his arguments; 1. 2009(10) SCC 84 2. 2010(2) JCR 406 [ 2010(1) JLJR 690 ] 3. (2009)2 SCC 409 4. 2012 SAR (Civil) 169. .4. The learned counsel for the petitioner cited the following judgments in support of his arguments; 1. 2009(10) SCC 84 2. 2010(2) JCR 406 [ 2010(1) JLJR 690 ] 3. (2009)2 SCC 409 4. 2012 SAR (Civil) 169. .4. As against this, learned counsel for the respondent-plaintiff submitted that the learned court below has not committed any jurisdictional error while exercising the power vested upon it by allowing the said amendment petition. It is further submitted that the learned court below has rightly and properly taken into account relevant aspect which are required to be consider while allowing or disallowing the amendment. It is further submitted that the learned Court below has allowed the amendment so as to avoid any multiplicity of the proceedings as also for the ends of justice. It is further submitted that learned Court below has also observed that the plaintiff has shown due diligence as required under the proviso of Order 6 Rule 17 C.P.C. Learned counsel for the respondent by referring para 5 of the said amendment petition pointed out that the plaintiff has explained about the due diligence in the application seeking amendment. According to the learned counsel for the respondent-plaintiff, the certain mistakes were detected only in the 2nd week of February 2009 when the plaintiff was preparing his case on the basis of the documents filed by the plaintiff and defendant as the defendant has filed some documents later on. It is further submitted that the amendment in question is in consonance with the pleadings and the certain additional facts have been brought on record so as to assist the court in determining the real controversies between the parties. It is further submitted that the amendment in question is not going to affect adversely to the defendant as the defendant will get chance to file written statement and also to lead evidence in respect of the said amendment, if required. It is further submitted that the present petitioner will also get an opportunity, to recall the witnesses for further cross-examination, if required and, therefore, the interest of the other side is not going to prejudice in any manner. Learned counsel for the respondent-plaintiff in support of his submission has also cited the following judgments; 1. 2011(1) JCR 379 (Jhr.) 2. 2012(2) JLJR (S.C.) 388 3. 2012(3) JCR 184 (Jhr.) [ 2012(3) JLJR 312 ] 5. Learned counsel for the respondent-plaintiff in support of his submission has also cited the following judgments; 1. 2011(1) JCR 379 (Jhr.) 2. 2012(2) JLJR (S.C.) 388 3. 2012(3) JCR 184 (Jhr.) [ 2012(3) JLJR 312 ] 5. Learned counsel for the respondent further submitted that in view of the latest judgment delivered by the Hon'ble Apex Court in 2012 (2) JLJR 388, the courts are required to adopt liberal approach while allowing such amendment petition and the courts while deciding such prayers should not adopt a hyper technical approach and the liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs and normally the amendments are allowed in the pleadings to avoid multiplicity of litigations. 6. Considering the aforesaid rival submissions and from perusal of the order impugned as well as other papers annexed with the petition, it appears that the Court below has allowed the amendment petition at the stage of defendant's evidence. It further appears that the written statement was filed on 9th September 2004 and thereafter the issues have been framed in the year 2004 itself and, thereafter, the plaintiff's evidence has been closed on 23rd February 2007 and the amendment application has been made by the plaintiff in the year 2009. It further appears that the Suit is filed for title and recovery of possession and by way of this amendment, the plaintiff has given certain additional facts in support of the subject matter of the suit, which according to the plaintiff is in consonance with the original pleadings. On perusal of the said application, it also appears that in paragraph 5, the plaintiff has rendered explanation and tried to explain as to why the amendment application was moved in the year 2009. from perusal of the order passed by the court below it appears that the court below has taken into account that the evidence of the defendant is going on and the defendant will have an opportunity to lead evidence on this issue, if required, and therefore, the court below has rightly and properly taken the liberal view by granting the amendment in question, which is in accordance with the provision as contained in Order 6 Rule 17 CPC. It appears that the plaintiff evidence is over and, therefore, now there is no question to lead any further evidence by the plaintiff in support of amendment in question and at the same time, the defendant shall have an opportunity to file additional written statement and also to lead evidence in respect of amended portion of the plaint, if required and shall also have an opportunity to recall the plaintiff's witnesses for further cross-examination, if required. Thus the defendant's interest is not likely to be prejudiced in any manner. I have also perused the judgment cited by the learned counsel for the petitioner as well as respondent mentioned above. The reasons given in the judgment reported in 2012(2) JLJR 388 appears to be relevant for the purpose of facts and circumstances of the present case, wherein the Hon'ble Apex Court has observed that the liberal view/approach should be taken by the Court while dealing with the amendment application and the learned court below has taken the liberal view/approach while allowing the amendment petition to avoid any multiplicity of proceedings and, therefore, in view of the aforesaid judgment of the Hon'ble Apex Court, this petition deserves to be rejected. The another judgment reported in 2011(1) JCR 379 (Jhr.) cited by the learned counsel for the respondent is also applicable in the facts and circumstances of the present case, wherein amendment petition was allowed at the stage of defendant's evidence and in the said judgment, a judgment of Hon'ble Apex Court reported in 2009(2) SCC 409 has been referred. So far as the judgments referred to and relied upon the learned counsel for the petitioner is concerned, there can not be any dispute about the principle enumerated in the said judgments but looking to the facts and circumstances of the present cases, they do not help to the petitioner's case. 7. Looking to the facts and circumstances of the present case, this court is of the view that the learned court below has not committed any jurisdictional error and illegality or irregularity while exercising the power vested upon it and has rightly allowed the amendment application and, therefore, this writ petition deserves to be dismissed. 8. With the aforesaid observations and directions, this writ petition stands dismissed.