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2013 DIGILAW 1207 (RAJ)

Narayan Lal v. Bachu Singh

2013-07-08

VINEET KOTHARI

body2013
JUDGMENT 1. - The defendant Narayan Lal S/O Asu Ji has filed the present writ petition being aggrieved by the order dated 28.2.2013 passed by the Civil Judge (Sr. Div.) Mandal in Civil Original Suit No. 116 of 2010, Bachu Singh v. Narayan Lal and ors. whereby the learned trial Court allowed the plaintiff's application under Order 6 Rule 17 C.P.C. allowing some amendments in the plaint while rejecting some amendments at the same time. The amendment application was allowed with costs to be paid to the defendants of Rs. 500/-. 2. Still aggrieved by the said order, the defendant has approached this Court by way of present writ petition under Article 227 of the Constitution of India. 3. This Court while issuing notices in the present writ petition, stayed the operation of the impugned order dated .28.2.2013, which interim relief is still continuing in favour of defendant. 4. The learned counsel for the defendant Dr. Sachin Acharya vehemently urged relying upon the various Supreme Court decisions that the amendment under Order 6 Rule 17 C.P.C. could not be allowed by the trial court for various reasons. First that trial had already commenced with the framing of issues and plaintiff's evidence being recorded by the learned trial Court and therefore, in view of proviso to Order 6 Rule 17 C.P.C., the amendment at this stage could not be allowed. He further urged that the plaintiff had not brought to the notice of this Court the fact which he now wanted to add in the plaint for considerable period of 2 and = years in the present suit for injunction filed by the plaintiff - respondent. He sought to add the averments in the plaint that while the Commissioner's report was obtained in the present case by the learned trial Court on 20.5.2007, the plaintiff claimed that on the previous day on 19.5.2007, the defendants had forcibly dispossessed the plaintiff from the land in question. Dr. Sachin Acharya submitted that the suit was filed on 15.5.2007 about 5 days back and the written statement was filed by the defendants on 29.5.2007 along with the counter claim in which cancellation of patta issued in favour of plaintiff was also claimed by the defendants and the rejoinder thereto was also submitted by the plaintiff on 14.9.2007. Dr. Sachin Acharya submitted that the suit was filed on 15.5.2007 about 5 days back and the written statement was filed by the defendants on 29.5.2007 along with the counter claim in which cancellation of patta issued in favour of plaintiff was also claimed by the defendants and the rejoinder thereto was also submitted by the plaintiff on 14.9.2007. Having not stated anything about this fact which occurred on 19.5.2007 in these subsequently filed pleadings by the plaintiff, the plaintiff could not be allowed to amend the plaint at such belated stage. He relied upon the decision of Hon'ble Supreme Court in the case of Vidya Bai and ors. v. Padmalatha and ors., reported in (2009) 2 SCC 409 and submitted that after the trial had commenced, the Order 6 Rule 17 C.P.C. is couched in a mandatory form and therefore, the impugned order even though partly allowing the plaintiff's amendment application is required to be set aside. 5. Per contra, the learned counsel appearing for the respondent - Plaintiff, Mr.Vinay Jain relying upon the decision of Hon'ble Supreme Court in the case of Pankaja and anr. v. Yellappa, reported in 2004 DNJ (SC) 826 and Baldev Singh v. Manohar Singh, reported in (2006) 6 SCC 498 urged that the amendment in the pleadings had become necessary to add relevant facts in the plaint, which was filed for seeking injunction against the defendants for not interfering with the peaceful possession of the land in question by the plaintiff that since the plaintiff had been forcibly dispossessed on 19.5.2007, just one day prior to Commissioner's report obtained by the Court on 20.5.2007, unless pleadings about possession are amended, the plaintiff would not be allowed to prove these facts for grant of suitable relief in a suit for injunction. Since the suit was pending trial and the plaintiff's evidence was being recorded by the learned trial Court, it was not too late in the day for the learned trial Court to have allowed such amendment, which was done in the interest of justice and such order, therefore, does not require any interference by this Court under Article 227 of the Constitution of India. 6. 6. Having heard the learned counsels for the parties, this Court is of the opinion that it is true that normally the amendment in the plaint cannot be allowed after the trial has commenced and that is what the intention of the amendment in law was. However, if the interest of justice requires the plaint to be amended, the learned trial Court in exercise of its discretion can do so to meet the ends of justice. In the present case, this Court finds that since the plaintiff is allegedly dispossessed one day prior to Commissioner's report on 20.5.2012, which is only about a week after the suit itself is filed, the amendment in the plaint sought at this stage has rightly been allowed by the learned trial Court and the learned trial Court has taken full care to compensate the defendants by payment of costs of Rs. 500/- and has partly allowed the amendment application declining the amendment for declaration of his title also which the learned trial Court thought that it would alter the character and nature of the suit. Such discretionary orders are not required to be interfered with in a narrow scope of Article 227 of the Constitution of India. The supervisory jurisdiction is not meant for making a hair splitting exercise for interfering with the interlocutory orders passed by the learned trial Court during the pendency of trial unless serious miscarriage of justice has resulted by such interlocutory orders. While the judgments relied upon by the learned counsel for the plaintiff - respondent in the case of Baldev Singh (supra) and Pankaja (supra) are found to be fully supporting the case of the plaintiff - respondent, the judgment relied on by the learned counsel for the defendant - petitioner does not make the impugned order without jurisdiction or resulting in a miscarriage of justice. The legal position as laid down by Hon'ble Apex Court is undoubtedly binding upon this Court and all lower Courts, but the application of law in the facts and circumstances of the case depends necessarily upon the facts and circumstances of each case. This Court is satisfied that allowing the amendment application partly by the learned trial Court in the present case subserve the interest of justice. 7. Consequently, the present writ petition of the defendant is found to be devoid of merit and the same is accordingly dismissed. This Court is satisfied that allowing the amendment application partly by the learned trial Court in the present case subserve the interest of justice. 7. Consequently, the present writ petition of the defendant is found to be devoid of merit and the same is accordingly dismissed. No order as to costs. A copy of this order be sent to the concerned parties forthwith.Petition Dismissed. *******