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Rajasthan High Court · body

2016 DIGILAW 657 (RAJ)

Kuldeep Gargi v. Bhagwan Das

2016-05-10

ARUN BHANSALI

body2016
ORDER : Mr. Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the order dated 6.1.2016 passed by the trial court, whereby the application filed by the petitioner under Order 6, Rule 17 C.P.C. seeking amendment in the written statement has been rejected. 2. The respondent Bhagwan Das filed a suit for partition and mesne profit against the petitioner and several others. 3. The petitioner filed a written statement and inter-alia relied on will dated 24.3.1977 executed by Smt. Puni Devi and in the additional pleas claimed adverse possession. For the plea of adverse possession, a specific averment was made that ever since the death of Smt. Puni Devi on 16.3.1979, there has been litigations between the parties, which clearly indicates that the petitioner is in possession without the consent of the plaintiff and others. Where after, issues were framed and issues pertaining to the will as well as adverse possession were framed by the trial court. 4. The petitioner thereafter filed an application under Order 8, Rule 1A (3) C.P.C. seeking to place documents pertaining to the litigation between the parties. The application was allowed despite being opposed by the plaintiff by imposing cost of Rs. 1,000/-. As soon as the application under Order 8, Rule 1A (3) was allowed, the petitioner filed an application under Order 6, Rule 17 C.P.C. seeking to amend the written statement so as to incorporate the substance of the documents in the written statement. For the purpose of proviso to Order 6, Rule 17 C.P.C. it was stated that the documents were previously not placed on record and the petitioner was not aware of its relevance and after the counsel was made aware of the said documents, the application for bringing the documents on record has been filed and after the application was allowed, the amendment has been sought, which is bona fide. 5. A reply to the application was filed by the plaintiff, interalia, opposing the application and questioning the plea of due diligence raised by the petitioner. It is, inter-alia, submitted that the petitioner himself is a counsel and is aware of the legal position and the plea raised is baseless and the requirements of proviso to Order 6, Rule 17 C.P.C. are not fulfilled, therefore, the application deserves to be dismissed. 6. It is, inter-alia, submitted that the petitioner himself is a counsel and is aware of the legal position and the plea raised is baseless and the requirements of proviso to Order 6, Rule 17 C.P.C. are not fulfilled, therefore, the application deserves to be dismissed. 6. The trial court, after hearing the parties, came to the conclusion that the proposed amendment pertains to the evidence related to the documents regarding which the petitioner can always lead evidence and there was no requirement to seek amendment besides the fact that amendment was not bona fide. 7. It is submitted by learned counsel for the petitioner that the trial court was not justified in dismissing the application filed by the petitioner inasmuch as, the amendment sought was not necessary for the purpose of proper disposal of the suit. 8. The application filed by the petitioner under Order 8, Rule 1A (3) C.P.C. was allowed by the trial court by negating the plea of delay and now the application under Order 6, Rule 17 C.P.C. has been rejected on the ground of delay. It was further submitted that unless the petitioner make averments in the written statement pertaining to the documents, which have been taken on record, the petitioner would not be able to lead evidence on the issue and therefore, the order impugned deserves to be quashed and set-aside. 9. Reliance was placed on judgment in the case of Navneet Kumar. v. Mahaveer Prasad., 2009(1) DNJ (Raj.) 394. 10. Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the petitioner. It was submitted that the foundational requirement of proviso to Order 6, Rule 17 C.P.C. has not been fulfilled, the plea of the petitioner is already taken in the written statement regarding the litigation and now the amendment in the written statement after the evidence of the plaintiff is already over just for the purpose of elucidating the plea raised cannot be permitted and therefore, the order passed by the trial court does not call for any interference. 11. Reliance was placed on judgment in the case of M/s. Indian Oil Corporation Ltd. & Anr. v. Rent Tribunal, Udaipur., S.B. Civil Writ Petition No.12469/2015, decided on 25.1.2016. 12. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 13. 11. Reliance was placed on judgment in the case of M/s. Indian Oil Corporation Ltd. & Anr. v. Rent Tribunal, Udaipur., S.B. Civil Writ Petition No.12469/2015, decided on 25.1.2016. 12. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 13. A bare perusal of the written statement filed by the petitioner clearly indicates that a specific plea regarding the litigation between the parties and its consequential effect on the plea raised by the petitioner regarding adverse possession has already been taken. The documents which were sought to be produced under Order 8, Rule1A (3) C.P.C. which application was allowed by the trial court pertaining to the said litigation between the parties and thereafter, the present application under Order 6, Rule 17 C.P.C. C.P.C. was filed seeking to indicate the said documents in the written statement/additional plea already raised. 14. The submission made by learned counsel for the petitioner that unless the petitioner makes a reference of the documents in the written statement, the said documents cannot be utilised by the petitioner does not appear to be well founded, inasmuch as, the party is required to only plead facts and not the evidence in support of the said pleading in the plaint/written statement. The fact regarding the litigation between the parties has already been indicated in the written statement in support of plea of adverse possession and what is now sought to be indicated by way of amendment is the evidence in support whereof, which attempt goes against the basic premise of not pleading evidence. 15. So far as the judgment in the case of Navneet Kumar (supra) is concerned, the judgment has to be read in the context in which the same was passed and cannot be taken as a general preposition as the same would lead to requirement of amendment in every case where an application under Order 7, Rule 14 (3) C.P.C. or Order8, Rule 1A (3) C.P.C. is allowed in the plaint / written statement, which procedure is not envisaged either by the C.P.C. and / or any other settled legal procedure. 16. The trial court has already observed that in view of the plea taken by the petitioner in the written statement, the documents can be produced by the petitioner in his evidence. 17. 16. The trial court has already observed that in view of the plea taken by the petitioner in the written statement, the documents can be produced by the petitioner in his evidence. 17. In view thereof, without going into the aspect as to whether the petitioner was able to make out a case as per proviso to Order 6, Rule 17 C.P.C. the order passed by the trial court does not call for any interference. There is no substance in the writ petition. The same is, therefore, dismissed. 18. Looking to the status of the case and request of learned counsel for the respondents, the trial court is directed to proceed with the matter as expeditiously as possible and not grant unnecessary adjournment to the parties.