Swami Nath v. District Judge Balrampur U. P. and Others
2013-02-27
SHRI NARAYAN SHUKLA
body2013
DigiLaw.ai
Shri Narayan Shukla, J.— Heard Mr.S.C.Kashish, learned counsel for the petitioner as well as Mr.Madhur Kant Srivastava, learned counsel for the respondents 3 to 5. Since common question is involved in both the writ petitions, the same are decided by a common order. The petitioner has challenged the order dated 29.9.2007, passed by the Civil Judge (Sr.Div.), Balrampur, whereby the petitioner's applications being application No.148 Ka 2 and application No.149 Ka 2 for amendment of plaint filed in Regular Suit No.141/88 and 142/98, pending before the Civil Judge (Sr.Div.) Balrampur, (have been rejected), as also the order dated 21.1.2009, passed by the District Judge, Balrampur in Civil Revision No.76 of 2007 and Civil Revision No.77 of 2007 upholding the orders passed by the learned Civil Judge. The petitioner filed a suit for permanent injunction as well as for cancellation of sale deed dated 11.3.1992 executed by Smt. Bitta in favour of Laxmi Prasad and Shiv Prasad on 17th of March, 1998. In the relief clause the petitioner/plaintiff disclosed that the District Registration Officer, Gonda has passed the order on 10.3.1998 in Case No.9/92 for registration of the said sale deed but he did not challenge it. On 6th of September, 2007 he filed an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint and by way of amendment he proposed to challenge the sale deed registered on 16.3.1998. The learned counsel for the respondents raised objection against the maintainability of the said application being barred by time. It was stated in the objection that the document of sale was executed in 1998, but the petitioner has prayed for cancellation of the same by way of amendment filed in 2007 i.e. after about 9 years. The trial court considered the application as well as objection filed by the respondents and by means of order dated 29.9.2007 rejected the application being barred by time. In the order of the trial court, it is stated that at the time of institution of the suit the petitioner/plaintiff was aware regarding the order passed by the District Registration Officer on 10.3.1998 for registration of document, but he did not challenge it. Therefore, after 9 years it is not permissible for him to challenge the same.
In the order of the trial court, it is stated that at the time of institution of the suit the petitioner/plaintiff was aware regarding the order passed by the District Registration Officer on 10.3.1998 for registration of document, but he did not challenge it. Therefore, after 9 years it is not permissible for him to challenge the same. The petitioner being aggrieved with the order passed by the trial court filed revisions before the District Judge, Balrampur being revision No.76 of 2007 and Revision No.77 of 2007, which too have been rejected on the same very ground. The provisions of Order 6 Rule 17 CPC which governs the amendment of pleadings are extracted below:- "17.Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." The courts below have observed that the petitioner filed suit on 17.3.1998, whereas the sale deed was registered on 16.3.1998. The registration of document is the implementation of order dated 10.3.98 passed by the District Registration Officer. In the relief clause he referred also the order passed by the District Assistant Registrar on 10.3.1998 for registration of document, but did not challenge the same, therefore, it cannot be said that he was not aware with the order passed by the District Registration Officer. It has further been observed that the respondents filed a written statement on 1st of December, 1999 and the case is at the stage of evidence, accordingly the trial has already commenced. Under the circumstances now at this stage there is no occasion to allow the application for amendment that too when the proposed amendment was within the petitioners' knowledge at the time of filing of the suit.
Under the circumstances now at this stage there is no occasion to allow the application for amendment that too when the proposed amendment was within the petitioners' knowledge at the time of filing of the suit. At this stage the learned counsels for both the parties have raised several arguments on merit of the case, but since only the question of limitation is before this court for adjudication, I do not feel it appropriate to interfere into the controversy apart from limitation. The facts as stated above, regarding the dates of filing of the suit, written statement as well as stage of proceeding of the suit, are not disputed. It is also not in dispute that the petitioner had knowledge about the order of District Assistant Registrar passed on 10.3.1998 for registration of the document as the petitioner himself has referred it in the plaint as well as in the relief at the time of filing of suit, but he did not choose to challenge the same. Now after 9 years he has challenged the registration of the document made on 16.3.1998, pursuant to the order passed on 10.3.1998. However, I am of the view that once the petitioner had knowledge about the order of registration at the time of institution of the suit, but did not challenge it, at this stage i.e. after about 9 years at the stage of evidence, it is not appropriate to allow the petitioners' applications for amendment of the suit. In the result the writ petitions are dismissed. _____________