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Rajasthan High Court · body

2012 DIGILAW 754 (RAJ)

Samrathmal v. Mohammed Iqbal

2012-03-27

BELA M.TRIVEDI

body2012
JUDGMENT 1. - With the consent of the learned counsels for the parties the petition is heard finally at the admission stage. 2. The present petition is directed against the order dated 4.3.10 passed by the Addl. District Judge, Fast Track, Abu Road (hereinafter referred to as 'the trial court') in Civil Suit No. 88/08, whereby the trial court has dismissed the application of the present petitioner-original defendant filed under Order 6, Rule 17 of CPC. 3. The short facts giving rise to the present petition are that the present respondent-original plaintiff has filed the suit before the trial court seeking recovery of Rs. 55,020/- against the petitioner-defendant. The said suit has been contested by the petitioner by filing written statement denying the allegations and averments made in the plaint. Subsequently, the petitioner defendant filed an application under Order 8, Rule 1A (3) of CPC for taking on record the Registration Certificate of the vehicle. The said application was granted by the trial court vide order dated 12.8.09. The petitioner defendant thereafter submitted an application under Order 6, Rule 17 of CPC seeking amendment in the written statement by incorporating para No. 5 and 6 in the said written statement. The said application was opposed by the respondent-plaintiff by filing the reply. The trial court vide the impugned order dated 4.3.10 rejected the said application of the petitioner defendant. Being aggrieved of the said order, the petitioner has filed the present petition under Article 227 of the Constitution of India. 4. The learned counsel Mr. Vipul Singhvi for the petitioner relying upon the judgment of this court in the case of Navneet Kumar & Ors. v. Mahaveer Prasad & Ors. 2009(1) DNJ (Raj.) 394 submitted that when the application for taking the document on record was allowed by the trial court, the necessary permission to amend the written statement was also required to be granted by the trial court. Relying on the judgment of the Apex Court in the case of Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors. (2006) 4 SCC 385 , the learned counsel for the petitioner has submitted that the court should allow the amendment that may be necessary for deciding the controversy between the parties, provided it does not cause injustice or prejudice to the other side. According to Mr. v. K.K. Modi & Ors. (2006) 4 SCC 385 , the learned counsel for the petitioner has submitted that the court should allow the amendment that may be necessary for deciding the controversy between the parties, provided it does not cause injustice or prejudice to the other side. According to Mr. Vipul Singhvi the trial court having permitted to take on record the additional document which was necessary for deciding the controversy between the parties, the trial court should also have permitted the petitioner to carry out the necessary amendment in the written statement, which was required in view of the said additional document produced by the petitioner. 5. However, the learned counsel Mr. Shambhu Singh for the respondent plaintiff supporting the order passed by the trial court submitted that the said amendment sought by the petitioner was not necessary to decide the controversy between the parties. He also submitted that the amendment sought would prejudice the cause of the respondent-plaintiff in the suit. 6. Having regard to the submissions made by the learned counsels for the parties and to the documents on the record it transpires that the respondent plaintiff has filed the suit for recovery of the outstanding amount against the petitioner towards the sell of Jeep bearing No. RJ-24 T-5547. According to the respondent-plaintiff, the petitioner-defendant had agreed to purchase the said jeep for Rs. 1,18,000/- out of which the petitioner had paid Rs. 76,000/- and the remaining amount of Rs. 42,000/- was to be paid in three instalments, however the said amount was not paid and, therefore, the suit was filed. As against that according to the petitioner-defendant, the petitioner had already paid the entire amount as per the agreement dated 22.12.04 and on such payment having been paid, the hypothecation of the vehicle was released and the registration was transferred in the name of the petitioner. According to the petitioner, the registration certificate of the vehicle proved that the said vehicle was transferred to the petitioner and the hypothecation was also released by the Bank. Since the said certificate was not available with the petitioner at the time of filing the written statement, he had submitted an application under Order 8, Rule 1A (3) of CPC for taking on record the said certificate. The said application was allowed by the trial court vide order dated 12.8.09. Since the said certificate was not available with the petitioner at the time of filing the written statement, he had submitted an application under Order 8, Rule 1A (3) of CPC for taking on record the said certificate. The said application was allowed by the trial court vide order dated 12.8.09. Thereafter the petitioner submitted the application seeking amendment in the written statement under Order 6, Rule 17 of CPC, in support of the said certificate, which application has been dismissed by the trial court. 7. As rightly submitted by the learned counsel for the petitioner, once the said certificate was permitted to be taken on record by the trial court, the impugned order not permitting the petitioner to amend the written statement in support of the said certificate was not justified. At the same time it is also pertinent to note that the petitioner-defendant was expected to make necessary application under Order 6, Rule 17 of CPC for amending the written statement simultaneously when he made application under Order 8, Rule 1A (3) of CPC seeking permission to produce the document on record. Be that as it may, once the said additional document has been permitted to be taken on record, no prejudice as such was going to be caused to the respondent-plaintiff by permitting the petitioner-defendant to amend the written statement. As per the legal position settled by the Apex Court, the courts should allow all the amendments that may be necessary to determine the controversy between the parties, of course it should not cause injustice or prejudice to the other side. 8. In view of the above, the petition deserves to be allowed, however with cost, which is quantified at Rs. 1,000/-. The petitioner is permitted to amend the written statement as prayed for in his application on payment of cost of Rs. 1,000/- to be paid to the respondent and the respondent shall be at liberty to file the rejoinder to the amended written statement. The impugned order passed by the trial court stands set aside and the petition stands allowed accordingly.Petition allowed. *******