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2014 DIGILAW 914 (JHR)

Urmila Devi v. Suman Samanta

2014-08-29

SHREE CHANDRASHEKHAR

body2014
Order Aggrieved by order dated 08.08.2013 and 12.11.2013 passed by the Civil Judge (Senior Division) III, Giridih, in Eviction Suit No. 01 of 2004 whereby, the petition dated 09.05.2013 under Order VI Rule 17 of the C.P.C and under Section 151 of the C.P.C filed by the petitioner/defendant have been rejected, the petitioner has approached this Court. 2. The brief facts of the case are that, initially the Eviction Suit No. 22 of 2003 was filed by Sapan Samanta, the brother of the respondent on 25.08.2003 which was subsequently renumbered as Eviction Suit No. 01 of 2004. The defendant, husband of the present petitioner filed written statement on 11.03.2004 and issues were framed on 27.07.2007. The evidence led by the plaintiff was concluded on 14.08.2014 and the matter is awaiting evidence of the defendant. In the meantime, the sole respondent preferred an application dated 04.06.2004 under Order 1 Rule 10(2) of the C.P.C. which was dismissed for non-prosecution on 27.02.2007. The second application under Order 1 Rule 10 was filed by the respondent/present plaintiff on 24.05.2010 which has been allowed vide order dated 01.08.2012. Against the said order, the petitioner approached this Court in W.P.(C) No. 7259 of 2012 which was disposed of by order dated 17.04.2013 granting liberty to both the parties to file amendment application, if necessary. Subsequently, the present plaintiff filed an amendment application which has been allowed by the Trial Court however, the application dated 09.05.2013 filed by the petitioner has been dismissed vide order dated 08.08.2013. The petitioner/defendant preferred an application seeking recall of order dated 08.08.2013 however, the same has also been dismissed vide order dated 12.11.2013. 3. Heard the learned counsel for the parties and perused the documents on record. 4. The learned counsel appearing for the petitioner has submitted that the amendment sought by the petitioner/defendant was necessitated due to subsequent development. After the death of the original plaintiff, the present plaintiff sought his impleadment in the pending suit. It is further submitted that the defendant has taken a stand that the husband of the defendant made some payment to the husband of the present plaintiff and he has been sending money through moneyorder which was declined by the present plaintiff. Since, these developments are subsequent to filing of the Eviction Suit, these facts were necessary for the defendant to incorporate in the written statement. Since, these developments are subsequent to filing of the Eviction Suit, these facts were necessary for the defendant to incorporate in the written statement. Under the aforesaid facts, it is submitted that the restriction contained in Proviso to Order VI Rule 17 is not attracted in the present case. The learned counsel for the petitioner has relied on decision of the Hon'ble Supreme Court reported in AIR 2000 SC 614 to fortify his contention that if an amendment has been sought promptly and allowed, if does not cause injustice to other parties, such prayer seeking amendment should be allowed. 5. The learned counsel appearing for the respondent has submitted that a bare perusal of application under Order VI Rule 17 would indicate that amendment sought by the defendant in the written statement relates to some remittances made to the present plaintiff. It is further apparent that the petitioner/defendant has made a statement that certain amount was paid to the present plaintiff and his wife and there was an understanding for sale of the suit premises. It further appears that other facts which are sought to be incorporated in the written statement would relate to the year, 1998 and thus since those facts were within the knowledge of the defendant still the defendant failed to aver those facts in the written statement, the same should not be allowed. The petitioner has not been able to demonstrate that those were facts which were not within the knowledge of the defendants and therefore, those facts could not be pleaded in the written statement. 6. I have carefully considered the submissions made by the counsel appearing for the parties and perused the documents on record. 7. Law relating to amendment is well-settled. Generally the Courts would be liberal in approach while deciding an application seeking amendment however, it is also true that if an amendment has been sought by a party to the suit which would either change the nature of the suit or which is improper, such amendment can not be allowed. In the present case, I find that the Eviction Suit which was filed on 25.08.2003 is pending even after lapse of 11 years. The amendment application was filed on 09.05.2013, that is, more than 10 years of filing of the suit. The Suit was filed on the ground of default in payment from March, 2003 to July, 2003. In the present case, I find that the Eviction Suit which was filed on 25.08.2003 is pending even after lapse of 11 years. The amendment application was filed on 09.05.2013, that is, more than 10 years of filing of the suit. The Suit was filed on the ground of default in payment from March, 2003 to July, 2003. The facts sought to be incorporated in the written statement by the defendant appears to be either subsequent development or the facts which were within the knowledge of the defendant. It is also a matter of record that in the meantime, the original plaintiff has died. The learned counsel appearing for the respondent has submitted that the respondent is a literate person. From the narration of the event it appears that after dismissal of the amendment application on 08.08.2013 instead of challenging the same before the High Court, the petitioner filed an application seeking recall of the order dated 08.08.2013 which was dismissed vide order dated 12.11.2013. The learned Trial Court has though dismissed the application stating that it has been filed at belated stage however, I am of the opinion that even if the reasons assigned by the Trial Court may not sustain the scrutiny of law, the petition filed by the petitioner has rightly been dismissed. I find no merit in the present writ petition and accordingly, it is dismissed. Consequently, I.A. No. 2494 of 2014 is disposed of.