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2017 DIGILAW 980 (HP)

Naresh Kumar v. Kali Dass

2017-08-30

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. 1. The present petition is maintained by the petitioner under Article 227 of the Constitution of India, against the impugned order, dated 17.9.2016, passed by the learned Civil Judge(Junior Division), Court No.2, Sarkaghat, District Mandi, H.P., whereby the application of the petitioner under Order 6 Rule 17 of the Code of Civil Procedure, was dismissed. Further, a prayer has been made to allow the present petition and to set aside the impugned order and also to allow the application under Order 6 Rule 17 of the Code of Civil Procedure. 2. Brief facts giving rise to the present petition are that the petitioner/plaintiff (hereinafter referred to as ‘plaintiff’) maintained a civil suit against the respondents/ defendants (hereinafter referred to as ‘defendants’) for declaration to the effect that the entries with regard to Khasra No.642, land measuring 00-00-69 hectares are wrong and illegal and the plaintiff, alongwith the proforma defendant, has become owner by way of adverse possession and consequential relief for permanent prohibitory injunction. It has been alleged that the civil suit was filed in the year 2014 and in the said suit, notices were issued to the defendants and they also filed written statement. After completing the pleadings, issues were framed by the learned trial Court and evidence was also led by both the parties. 3. It has also been averred that when the matter was listed for arguments, it was transpired that the suit is liable to be amended and an application was filed by the petitioner seeking amendment of plaint alongwith the application, amended plaint was also filed, wherein it was prayed that in case, the plaintiff is not found entitled to a decree of adverse possession, then defendants be restrained to dispossess the plaintiff without due course of law or without legal process of law. It has been alleged that this amendment is necessary and it will not change the nature of the suit in any manner and no further evidence is required to be led for adjudication of the suit. It has also been averred that this amendment is necessary for just decision of the case. 4. It has been averred that notices were issued to the respondents/defendants. It has also been averred that this amendment is necessary for just decision of the case. 4. It has been averred that notices were issued to the respondents/defendants. They filed reply and objected the amendments sought for on the ground that application is not maintainable and the application for amendment has been filed just to linger on the proceedings and the application has been filed at the time when the matter was fixed for arguments, as such, the application filed at the belated stage is not maintainable and liable to be dismissed. 5. The applicant filed rejoinder to the reply wherein the grounds, as stated in the application, were reiterated and that the said application came up for consideration and the learned Court below, vide its order, dated 17.9.2016, dismissed the application for amendment, hence the present petition. 6. Heard. Learned counsel appearing for the petitioner has argued that the learned Court below should have allowed the amendment, when the amendment is only with regard to the relief clause and nothing more and no evidence was to be led after the amendment. On the other hand, the learned counsel appearing for the respondents/defendants has argued that earlier also, an application was made by the petitioner, under Order 1 Rule 10 C.P.C. and there is also no error in the impugned order passed by the learned Court below. Therefore, the present petition deserves to be dismissed. 7. I have also gone through the records in detail. The plaintiff has maintained a suit for declaration that the plaintiff, alongwith proforma defendant, has become owner by way of adverse possession and consequential relief for permanent prohibitory/mandatory injunction. 8. It has been alleged that, as per the plaintiffs, prior to settlement, an exchange of land took place between Rania, predecessor-in-interest of Plaintiff and Dhani Ram, predecessor-in-interest of defendant and Khasra No.760/1001, land measuring 0-00-96 corresponding to Khasra No.642 of consolidations, as per missal haquiat attached, which was also given to Dhani Ram alongwith other land, but Khasra No.760/1001, measuring 0-00-96 remained in the possession of Rania, the predecessor-in-interest of the plaintiff and proforma-defendant. It has also been averred that on 8th August, 1972, a report to record the possession of Rania S/o Dandu, was made by Dhana son of Govind and Tulsi with regard to Khasra No.1001 min and Khasra No.1002 min Land measuring 0-0-79 hect. It has also been averred that on 8th August, 1972, a report to record the possession of Rania S/o Dandu, was made by Dhana son of Govind and Tulsi with regard to Khasra No.1001 min and Khasra No.1002 min Land measuring 0-0-79 hect. As the same was in the possession of Rania, the predecessor-in-interest of the plaintiff and proforma defendant. 9. It has also been alleged that since 8th October, 1972, the predecessor-in-interest of the plaintiff and proforma defendant remained peaceful possession of this land and after the death of Rania, it is the plaintiff and proforma defendant, who are in peaceful possession of the suit land and the plaintiff has constructed a septic tank on this land, thus, the possession of the plaintiff and proforma defendant is peaceful. Consequently, the plaintiff and proforma defendant have become owner, by way of adverse possession, as the open necked and hostile possession of the plaintiff and proforma defendant matured, in the title by way of adverse possession. 10. It has also been averred that since the plaintiff and proforma defendant are in adverse possession of the suit land and have become owner by way of adverse possession, the defendants started creating problem by giving consent to construction of road on the suit land and called the revenue staff for demarcation with an intention to dispossess the plaintiff and proforma defendant, on 20.3.2014, and right to sue accrued on 26.3.2014, when the defendants finally refused to admit the claim of the plaintiff. 11. The prayer clause in the said suit reads as under: “It is therefore, prayed that keeping in view the aforesaid facts and circumstances, the plaintiff be declared owner of Khasra No.642, land measuring 0-00-69 hectare by passing decree for adverse possession in favour of the plaintiff and against the defendant and in consequent to this the defendants be restrained from interfering the suit land in any manner by passing a decree for permanent and prohibitory injunction in favour of plaintiff and against the defendant or any other relief for which the plaintiffs be found entitled to under the aforesaid facts and circumstances of the case with the cost of the suit and justice be done.” 12. Order VI, Rule 17 provides as under: “17. Order VI, Rule 17 provides as under: “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 inspite of due diligence, the party could not have raised the matter before the commencement of trial.” 13. The proviso hereinabove, makes it clear that no amendment can be allowed after the trial commences. In the instant case, the suit is at the advanced stage and the plaintiff has failed to show any reason as to why he could not move application for making amendment as sought for earlier, though, he has already made an application for amendment, which was allowed. The plaintiff has already moved an application under Order 1 Rule 10 Code of Civil Procedure, which was allowed. In these circumstances, this Court finds no error in the order passed by the learned Court below. At the same point of time, the plaintiff has already prayed for any other relief for which the plaintiff be found entitled to in the facts and circumstances of this case. In these circumstances also, if the plaintiff satisfies the conscious of the Court, he may be held entitled for any other relief. In these circumstances also, amendment as sought for, by the plaintiff, cannot be allowed. 14. The net result of the above discussion is that the order passed by the learned Court below is as per law and the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India is not required to be exercised in the present case for the reasons given hereinabove. 15. In view of the above enumerated circumstances, the present petition sans merits, deserves dismissal and is accordingly dismissed with no order as to costs. The parties are directed to appear before the learned Court below on 20th September, 2017. 16. The pending miscellaneous applications, if any, shall also stands disposed of.