Kanta Rani v. The Addl. Civil Judge (S. D. ) No. 1, Sri Ganganagar
2015-03-27
ARUN BHANSALI
body2015
DigiLaw.ai
JUDGMENT 1. - This writ petition is directed against order dated 24.02.2015 passed by the trial court, whereby, the applications filed by the petitioner under Order 7, Rule 14 CPC and under Order 6, Rule 17 CPC have been rejected. 2. A suit for declaration regarding ownership, permanent and mandatory injunction was filed by the petitioner in the year 2005. 3. A written statement was filed by the defendants in the year 2005 itself; where after the proceedings remained pending; after the issues were framed and affidavits in evidence were filed by the plaintiff-petitioner, the present application was filed under Order 6, Rule 17 CPC, inter alia, seeking amendment in the plaint to replace the names of owners of the land in question, who were predecessor in title of the petitioner; it was claimed that in the plaint the plaintiff by mistake indicated that Ram Chandra and Gangadhar were owners of the land in question and they had authorised Suraj Bhan to sale residential plots, in fact the land stood in the names of Krishna Kumar and Satyavan, who had authorised Suraj Bhan to transfer residential plots and, therefore, instead of Ram Chandra and Gangadhar, names of Krishna Kumar and Satyavan be substituted; it was claimed that on account of such amendment the cause of action is not changed; the documents relating to the proposed amendment have already been filed on the record, the trial has not commenced and it was claimed that the mistake was detected on the last date by counsel for plaintiff and immediately amendment application for correction of mistake is being filed; the plaintiff was not aware of the mistake earlier as she is a lady and meets the counsel seldom; the earlier counsel has left practice at Sri Ganganagar and plaintiff has appointed a new counsel, who detected the mistake on the last date and, therefore, the proposed amendment is being made with due diligence, which could not have been done earlier and prayed that the application be allowed. 4. Though no reply was filed by the defendants, the application was resisted on the ground of delay and the fact that defence of the defendants would be affected. 5.
4. Though no reply was filed by the defendants, the application was resisted on the ground of delay and the fact that defence of the defendants would be affected. 5. The trial court after hearing the parties came to the conclusion that the plaintiff was well aware of the fact that the land in question was in the names of Krishna Kumar and Satyavan despite that the said fact was not added in the plaint and after ten years of filing of the plaint, the amendment has been proposed, which clearly indicates that the same was not the amendment has been proposed, which would affect rights of the defendants and, consequently, dismissed the application. 6. Learned counsel for the petitioner submitted that the trial court committed grave error in dismissing the application, inasmuch as, the application could not be filed despite due diligence on account of the fact that the petitioner is a woman and was not aware of the mistake having been committed in the averments made in the plaint and as soon as new counsel was appointed and he detected the mistake, the application was duly filed; the cause of action and nature of dispute is not affected by the said amendment though the amendment is necessary in the facts and circumstances of the case and, therefore, the order impugned deserves interference. 7. Reliance was placed on Dhanpat Ram & Ors. v. Indra Chand, 2004 (3) DNJ (Raj.) 1555 . 8. I have considered the submissions made by learned counsel for the petitioner. 9.
7. Reliance was placed on Dhanpat Ram & Ors. v. Indra Chand, 2004 (3) DNJ (Raj.) 1555 . 8. I have considered the submissions made by learned counsel for the petitioner. 9. A bare look at the order dated 24.02.2015 reveals that as many as four applications were filed on behalf of the plaintiff and all the applications are in the nature of filling up the so called lacuna in the proceedings; the reason for the same appears to have only been the change of the counsel and it appears that after pendency of the suit for over ten years and the same having not progressed beyond filing of the affidavits by the plaintiff under Order 17, Rule 4 CPC, two applications under Order 7, Rule 14 and applications under Order 13, Rule 10 and Order 6, Rule 17 CPC were filed, which came to be disposed diligence i.e. the change of counsel and his having detected the so called mistake cannot be taken as a sufficient reason to comply with the requirements of proviso to Order 6, Rule 17 CPC. If the change of counsel and detection of certain mistake, lacuna and deficiency in the proceedings on part of his client/previous counsel and action pursuant thereto is accepted as acting by due diligence, the same would result in an unending exercise and every time that a counsel is changed the same would result in giving a cause under proviso to Order 6, Rule 17 CPC to seek amendment in the pleadings, which proposition cannot be accepted. 10. Admittedly, the plaint was filed ten years back with certain averments and for all these years the same were part of the pleadings, issues were framed based on the said pleadings and the amendment was sought on account of assumed detection of mistake. In view thereof, the order passed by the trial court cannot be faulted. 11. So far as the judgment of this Court in Dhanpat Ram (supra) is concerned, the same pertained to exercise of power by the appellate court to grant amendment and pertained to the year 1999, to which, the proviso to Order 6, Rule 17 CPC did not apply and, therefore, the judgment has no application to the present case. 12.
11. So far as the judgment of this Court in Dhanpat Ram (supra) is concerned, the same pertained to exercise of power by the appellate court to grant amendment and pertained to the year 1999, to which, the proviso to Order 6, Rule 17 CPC did not apply and, therefore, the judgment has no application to the present case. 12. Consequently, there is no substance in the challenge to the order dated 24.02.2015 passed by the trial court rejecting the application under Order 6, Rule 17 CPC. 13. Another application was filed by the petitioner under Order Samvat year 2056. 14. The trial court on conning to the conclusion that the said document was not relevant in view of the pleadings of the parties rejected the application. 15. Having gone through the order passed by the trial court and the material placed on record, no case for interference in the order passed by the trial court rejecting the applications under Order 7, Rule 14 CPC is made out. 16. In view of the above discussion, no case for interference in the order dated 24.02.2015 passed by the trial court pertaining to the orders on applications under Order 7, Rule 14 and Order 6, Rule 17 CPC filed by the petitioner is called for. The writ petition is, therefore, dismissedPetition dismissed. *******