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2012 DIGILAW 820 (HP)

Dharampal v. Vijay Singh

2012-11-12

DEV DARSHAN SUD

body2012
Judgment Dev Darshan Sud, J. This petition has been preferred against the order passed by the learned Civil Judge (Junior Division), Court No.4, Shimla, rejecting the application under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as `CPC’) filed by the plaintiff for amendment of the plaint. 2. The petitioner had earlier approached this Court in CMPMO No.202 of 2011, titled: Dharampal vs. Nodhar Ram, decided on 15.6.2011, challenging the order passed by the learned trial Court refusing permission to withdraw the suit. This Court in its order noticed that application for withdrawal can be allowed if there is a formal defect in the suit on account of which it must fail. Application was filed on account of two formal defects namely; (a) since detailed description of the suit property was not given, the suit may fail on this ground and (b) after filing the suit, the defendant had transferred the ownership of the suit land in favour of one Vijay Singh, who is also necessary party to the suit. As far as second defect is concerned, it has been cured by impleading Vijay Singh as defendant in the suit. The Court observed that the other ground that complete description of the suit property has not been given on which the suit may be dismissed. This Court held that the plaintiff can move an application in accordance with law for amendment of the suit giving complete details of the property and in this event the petition was dismissed. 3. The plaintiff now files this application stating that due to subsequent events the amendment of the plaint is required and that the plaintiff wants to bring on record the entire factual situation of the suit land. Paragraph-2 of the plaint is sought to be amended in extenso to include inter alia the facts that these plots were carved out from the total area and that there is no approach to the plot of the plaintiff. The defendant is a greedy person and had covered the path with malafide intention to stop ingress and egress of the plaintiff which does not have any other approach/path to the Municipal Corporation Road except the path in the suit land. 4. The defendant is a greedy person and had covered the path with malafide intention to stop ingress and egress of the plaintiff which does not have any other approach/path to the Municipal Corporation Road except the path in the suit land. 4. Learned counsel appearing for the petitioner submits that the learned trial Court was wrong in dismissing the application under Order 6 Rule 17 CPC, more especially, when in the previous petition, this Court had clearly observed that the trial Court had itself held that the permission to amend the description of the property could be granted in case the amendment is applied for. 5. Learned trial Court, on consideration of the application holds that issues were framed on 12.10.2011, suit was filed on 15.9.2008 and the application for amendment has been moved on 4.4.2012. These dates acquired some significance for the reasons that in the application it has not been stated as to how the facts stated are subsequent to filing of the suit when what the plaintiff pleads is that proceedings of the bifurcation of the land etc. started by purported order of the Municipal Corporation on 30.3.1981. The Court notices in the pleadings that these plots were purchased in the year 2004-2005, whereas division was carried out by the authority in the year 1981 and the plaintiff alongwith other persons to whom the plots were allotted for construction over their respective shares according to the approval granted by the authorities. The submission made on behalf of the petitioner that the subsequent events cannot be accepted. In the amendment itself what the petitioner pleads is that the construction was carried out in the year 2004-2005, division of the plots was completed in 1981. There is nothing on record to indicate even remotely as to under what circumstances, when the petitioner had constructed on the plot in the year 2004-2005, the factum of division etc. was not within his knowledge. Though, while considering application for amendment, this Court does not have to judge the merits of the case, nonetheless, the approach cannot be so liberal as to give a licence to a party to plead whatever and whenever he chooses. The Supreme Court in Rajesh Kumar Aggarwal and Others vs. K.K. Modi and Others, (2006)4 SCC 385 , holds:- “16. Though, while considering application for amendment, this Court does not have to judge the merits of the case, nonetheless, the approach cannot be so liberal as to give a licence to a party to plead whatever and whenever he chooses. The Supreme Court in Rajesh Kumar Aggarwal and Others vs. K.K. Modi and Others, (2006)4 SCC 385 , holds:- “16. Order 6 Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.” (pp.392-393) 6. Adverting to the principle laid down hereinabove, the Court holds:- “20. ... … … … … The Court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting malafide. There is a plethora of precedents pertaining to the grant or refusal of permission for amendment of pleadings. The various decisions rendered by this Court and the proposition laid down therein are widely known. This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. … … … …” (pp.393-394) 7. Adverting to the present case, what I find is that the facts were within the knowledge of the plaintiff who now seeks to have a retrial on pleadings of facts which are well within his knowledge but not pleaded. There is no explanation on record. There is not even a remote explanation on the record under what circumstances the plaintiff was prevented from pleading these facts. In these circumstances, this petition is rejected. There is no explanation on record. There is not even a remote explanation on the record under what circumstances the plaintiff was prevented from pleading these facts. In these circumstances, this petition is rejected. It will be open to the plaintiff to prove his case by leading evidence in accordance with law and in consonance with the pleadings on record.