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2014 DIGILAW 111 (MP)

Brijesh Kumar v. Jagannath Prasad

2014-01-23

SUJOY PAUL

body2014
ORDER 1. This petition is directed against the order dated 20.3.2013 passed in Case No.2A/2010 (CS) by Civil Judge, Class-2 Dabra. The plaintiff/respondent filed a suit for declaration and permanent injunction. The said suit was dismissed on 30.8.2005 (at that point of time numbered as 16A/2002). Against this judgment and decree the present petitioner filed appeal before First Additional District Judge, Dabra which was registered as regular Civil Appeal No. 45A/2005. The appellate Court passed its judgment on 1.8.2006. Para 9 of the judgment shows that the matter was remanded back to the trial Court by the appellate Court with the direction to record evidence of the parties on two issues. The said issues are as under :- **¼1½ D;k O;ogkj okn Øa-23,@81 esa tks bdckfy;k tokc nkok izLrqr fd;k x;k gS og y{ehukjk;.k }kjk izLrqr fd;k x;k gS \ ¼2½ D;k O;ogkj okn Øa-23,@81 ds oknhx.k txUukFk izlkn caxjk ds vfèkoDrk ukjk;.k flag us izfroknh y{ehukjk;.k dh vksj ls bdckfy;k tokc nkok izLrqr fd;k gS \ ;fn gkW rks izHkko \** 2. The said order of appellate Court was unsuccessfully tested before this Court in M.A. No. 836/2006 by judgment dated 28.7.2009. This Court dismissed the appeal. In absence of any further challenge to the appellate order aforesaid, the said judgment has attained finality. 3. The petitioner/defendant No.1 preferred an application before the trial Court under Order 6 Rule 17 C.P.C. The said application was opposed by the other side. By impugned order dated 20.3.2013, the Court below has rejected the said application. Criticizing this order Shri Nirankari learned counsel for the petitioner submits that the appellate Court has permitted both the parties to lead evidence and, therefore, the trial Court should have allowed the said application. 4. The prayer is opposed by Shri Santosh Agrawal and Shri B.Raj Pandey, learned counsel for other side. 5. The Court below has rejected the amendment application on the ground that amendment application is filed belatedly. The appellate Court remanded the matter on 1.8.2006 and the amendment application is filed in the year 2013. The question is whether this order is in accordance with law. It is apt to mention that the scope of interference under Article 227 against an interlocutory order is limited. If order impugned suffers from any jurisdictional error or manifest procedural impropriety or illegality, interference can be made. Another view is possible, is not a ground for interference. The question is whether this order is in accordance with law. It is apt to mention that the scope of interference under Article 227 against an interlocutory order is limited. If order impugned suffers from any jurisdictional error or manifest procedural impropriety or illegality, interference can be made. Another view is possible, is not a ground for interference. The main purpose of exercising this jurisdiction is to ensure that the Courts below exercise their power within their authority. Interference as a routine cannot be made, nor it can be made on a drop of hat. This view is taken by the Supreme Court in Shalini Shyam Shetty and another v. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 , which is recently followed in (2013) 9 SCC 374 (Sameer Suresh Gupta v. Rahul Kumar Agrawal). 6. In the opinion of this Court, if the order of Court below is examined on the anvil of the law laid down by Supreme Court, it will be clear that the Court below has given a plausible reason for rejecting the said application. It cannot be said that the order impugned is without jurisdiction, nor it can be said that it suffers from any procedural impropriety or illegality. In Sameer Suresh Gupta and Shalini Shyam Shetty (s), the apex Court held that even a wrong order need not be interferred as a matter of routine by this Court. 7. In the considered opinion of this Court, by filing amendment application the petitioner intended to introduce certain new pleadings which were beyond the scope of remand. Putting it differently, by amendment, the petitioner intended to travel beyond two issues on which adjudication was required on remand. Thus, for this reason also, in my opinion, no interference is warranted in the order impugned. 8. Petition sans substance and is hereby dismissed.