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2012 DIGILAW 1703 (RAJ)

Dr. Sriniwas v. Additional District and Sessions Judge No. 2, Bharatpur

2012-08-06

BELA M.TRIVEDI

body2012
JUDGMENT 1. - The present petition filed under Article 227 of the Constitution of India is directed against the order dated 16.4.2012 passed by the Additional District and Sessions Judge No. 2, Bharatpur, (hereinafter referred to as the Appellate Court) in Civil Regular Appeal No. 17/2003, whereby the Appellate Court has dismissed the application of the petitioner-defendant seeking amendment in the written statement under Or. VI Rule 17 of C.P.C. at the appellate stage. 2. The respondent No. 2-original plaintiff had filed the suit against the petitioner-defendant, seeking possession of the suit premises, which suit was decreed by the trial court, against which the petitioner-defendant had filed the appeal being No. 17/03, before the Appellate Court. During the pendency of the appeal, the petitioner-appellant filed an application seeking amendment in the written statement filed by him in the suit, for bringing subsequent events on record. The said application has been dismissed by the Appellate Court, against which the present petition has been filed. 3. It has been submitted by learned counsel Mr. Bipin Gupta, for the petitioner that the Appellate Court though permitted the documents sought to be produced by the petitioner under Or. XLI R. 27 on record, has erred in not permitting the petitioner to make necessary amendment in the written statement as prayed for. According to him, the respondent-plaintiff had sold one shop vide the registered sale-deed dated 31.7.2006, to one Davendra Singh and also sold one another property by registered sale-deed dated 12.1.1993 to one Smt. Geeta Devi and therefore, the alleged ground of bonafide necessity for the disputed premises would not be available to the respondent-plaintiff. According to him, the original written statement was required to be amended accordingly. The learned counsel Mr. Gupta has placed reliance upon decisions of Apex court in case of Vallampati Kalavathi v. Haji Ismail, AIR 2001 SC 1441 , in case of Ramesh Kumar v. Kesho Ram AIR 1992 SC 700 and in case of Hasmat Rai And Another v. Ragohunath Prasad, AIR 1981 SC 1711 , in support of his submissions that the Appellate Court should have taken into consideration the subsequent events. Mr. Mr. Gupta has also relied upon the decision of Apex Court in case of Om Prakash Gupta v. Ranbir B. Goyal, (2002)2 SCC 256 , to submit that the pleadings having regard to the amendment for bringing on record the subsequent events can be taken into consideration. Mr. Gupta has also relied upon the judgment of this Court in case of Sunil Goyal And Another v. Additional District Judge, Court No. 8 Jaipur City, Jaipur And Others 2011(3) Western Law Cases (RAJ.)24 , and submitted that necessary directions may be given to the Appellate Court to take into consideration the subsequent events as prayed for by the petitioner-defendant. 4. In the instant case, it appears that the appeal against the decree of eviction passed against the petitioner is pending before the Appellate Court. During the pendency of appeal, the petitioner-appellant had submitted an application under Or. XLI R. 27 for taking on record the copies of the registered sale-deeds which the respondent plaintiff had allegedly executed in respect of his other properties. The said application was granted by the appellate Court and the said documents have already been permitted to be taken on record. Thereafter the application was submitted by the petitioner-appellant in the Appeal, seeking amendment in the written statement under Or. VI R. 17 of C.P.C., which has been rejected by the Appellate Court. This Court fails to understand as to how such an application seeking amendment in the pleadings of the suit is permissible at the appellate stage, when the suit has already been disposed of on merits. 5. Of course, the parties could lead additional evidence either oral or documentary, with the permission of the Appellate Court, under the circumstances enumerated in O. XLI, R. 27, but there is no provision contained in O. XLI permitting the parties to amend their pleadings at the appellate stage. 6. There can not be any disagreement with the proposition of law propounded by the Apex Court in the decisions relied upon by the learned counsel for the petitioner, however, the same are not applicable to the facts of the present case, in as much as the issue in the present case is not with regard to the appellate court not permitting the petitioner to lead additional evidence,but the issue involved is as to whether the application seeking to amend the written statement at appellate stage under Or. VI R. 17 would be maintainable or not. It is needless to say that for adducing an additional evidence at the appellate stage, the provisions contained in Or. XLI R. 27 to 29 would be applicable, and the party seeking to adduce additional evidence is required to follow the said provisions. However, the party can not be permitted to amend the pleadings of the suit at the appellate stage for brining on record the subsequent events which took place after the disposal of the suit. In the instant case, the necessary documents were permitted to be produced at the appellate stage and the same have also been exhibited as transpiring from the impugned order. Thus, the appellate court has already permitted the petitioner to produce the additional evidence by way of production of the documents as sought for, under O. XLI, R. 27, but has not permitted the petitioner to amend the written statement at the appellate stage under Or. VI R. 17 of C.P.C. In the opinion of this Court, there is no illegality or infirmity in the impugned order passed by the appellate court. 7. In that view of the matter, this Court does not find any substance in the present petition. The petition being devoid of merits deserves to be dismissed and is accordingly dismissed in limine.Petition dismissed. *******