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2018 DIGILAW 1526 (RAJ)

Pallavi Gautam v. Ramnarayan

2018-07-19

ALOK SHARMA

body2018
JUDGMENT Alok Sharma, J. - The petitioner-defendant (hereinafter 'the defendant') is aggrieved of the order dated 11-12-2017 passed by Additional District Judge No.3, Jaipur District Jaipur in the suit for cancellation of sale deed dated 27-8-2007 and consequential reliefs inter alia for permanent injunction, whereby his application under Order 6, Rule 17 CPC to amend the written statement was dismissed. 2. In response to the suit aforesaid, written statement of denial was filed on 11-4-2008. Issues having been struck and plaintiff evidence having been completed, the defendant Prashant Gautam filed his affidavit in defence and was slated to appear in the witness box for cross examination. He at this stage moved an application under Order 6, Rule 17 CPC on 11-7-2017 for amendment of the written statement seeking to incorporate therein certain facts regarding alleged incidents of 2-6-2016 and 3-6-2016, when the plaintiff was stated to have tried to take possession of the land in dispute and in regard whereto an FIR was lodged, followed by an investigation whereon apparently a challan against the plaintiff was filed. It was prayed that the written statement be allowed to be amended to incorporate the fact relating to the incident of 2-6- 2016, and 3-6-2016, the resultant FIR and consequential challan. The trial court has dismissed the said application under Order 6, Rule 17 CPC inter alia on the ground that even with reference to the alleged incident of 2-6-2016 and 3-6-2016 the FIR lodged thereon, the application filed on 11-7-2017 was belated. Further it all appeared to be an afterthought as to bring the facts stated on record. No reference to the alleged incident was even made in Prashant Gautam's affidavit in defence evidence filed on 24-4-2017. Further the trial court held that the amendment sought was irrelevant to the main dispute agitated in the suit, the issues framed thereon and that the application was nothing but an attempt to delay the trial and final adjudication of the suit filed in the year 2008 and pending for about ten years. Hence this petition. Heard considered. 3. Counsel for the defendant submitted that the impugned order is not sustainable in the eyes of law. Hence this petition. Heard considered. 3. Counsel for the defendant submitted that the impugned order is not sustainable in the eyes of law. He submitted that the Apex Court and this court have held that where the amendment to the pleadings sought was imperative; would facilitate the conclusive determination of the lis; was within limitation; did not change the nature of the suit; was bonafide, did not cause prejudice to the opposite party, not allowing it would be unjust and more so where the opposite party could be adequately compensated in costs, it should be allowed. It was submitted that in the instant case the plaintiff's suit was inter alia for permanent injunction and the issue of possession was thus necessarily central thereto. In the circumstances the plaintiff's attempt to dispossess the defendant in the incident of 2-6-2016 and 3-6-2016 in respect of which FIR was registered against him and he was challaned following investigation was very relevant to the adjudication of the suit. The amendment ought to have been allowed to bring those facts on record. The dismissal of the application for amendment was failure to exercise jurisdiction vested in the trial court. Counsel placed reliance on the judgment in case of Chakreshwari Construction Private Limited vs. Manohar Lal [ (2017) 5 SCC 212 ] in support of his submissions. 4. Mr. S.N. Kumawat, counsel for the plaintiff supported the impugned order. He submitted that the trial court has set out detailed reasons in its impugned order dismissing the Order 6, Rule 17 CPC application. The trial court's discretion having been reasonably exercised and it having found that the defendant's attempt was to delay trial in the suit of 2008, pending for ten years, no case for interference under this court's supervisory jurisdiction under Article 227 of the Constitution of India is made out. Mr. 5. N. Kumawat relied on the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons [ (2009) 10 SCC 84 ] wherein the Apex Court observed that though the courts have a very wide discretion in the matter of amendment of pleadings yet the court's power must be exercised judiciously and the court should never permit malafide, worthless and/ or dishonest amendments. Counsel submitted that the situation in which the application for amendment of the written statement was moved quite apparently was an afterthought, subsequent to the filing of the affidavit in defence by the defendant, in regard of an alleged matter over an year old, which had no relevance to the relief of cancellation of sale deed dated 27-8-2007 in the suit. This showed that the resort to Order 6, Rule 17 CPC was cynical and malafide, seeking to misuse a salutary provision of law and where a bonafide occasion for its applicability was not made out. The resort to Order 6, Rule 17 CPC by the defendant was wholly unjustified and the trial court has rightly dismissed the defendant's application, submitted Mr. S.N. Kumawat. 5. A perusal of the impugned order indicates that the defendant subsequent to completion of plaintiff's evidence on 23-9-2015, and filing his affidavit in evidence on 244-2017, instead of appearing in the witness box for cross examination, on 11-7-2017 moved an application under Order 6, Rule 17 CPC seeking amendment of the written statement to incorporate the fact of incidents of the 2nd, and 3rd June, 2016, regarding which an FIR was lodged, following which the plaintiff was challaned for allegedly throwing stones and demolishing the boundary wall of the suit property. It is not in dispute that the suit in issue seeks relief of cancellation of sale deed dated 27-8-2007 and permanent injunction. It was filed in 2008. The incident of 2nd and 3rd June, 2016 in respect of which the defendant lodged an FIR on 4-6-2016, were not brought to the notice of the court for over a year during which period the plaintiff's evidence having been concluded, the defendant had filed his affidavit in evidence without adverting to the said incident. The defendant was unable to explain the inordinate delay of over a year in seeking the amendment. Further the trial court has held that in the context of the issues in the suit before it, the facts sought to brought on record were quite irrelevant. Counsel for the defendant has not contested this finding and instead choosen to make a generalised argument stating the law when the courts may exercise their discretion to allow amendments. Such generalised arguments are of no avail. The power to allow an amendment is a matter of discretion. It turns on its own facts. Counsel for the defendant has not contested this finding and instead choosen to make a generalised argument stating the law when the courts may exercise their discretion to allow amendments. Such generalised arguments are of no avail. The power to allow an amendment is a matter of discretion. It turns on its own facts. On that score the trial court has found against the defendant by a detailed reasoned order ealier adverted to. 6. The impugned order passed by the trial court is well considered based as it is on objective consideration of the facts and material before it. It suffers neither from any perversity nor patent illegality nor is it capricious warranting interference by this court in the exercise of its power of superintendence under Article 227 of the Constitution of India. 7. There is no force in the petitions. Dismissed.