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2018 DIGILAW 1773 (RAJ)

Jagdish v. State of Rajasthan

2018-08-23

ALOK SHARMA

body2018
JUDGMENT Alok Sharma, J. - Under challenge is the order dated 19.7.2018 whereby the petitioner-plaintiff's (hereafter 'the plaintiff') application under Order 6, Rule 17 CPC to amend his plaint in his suit for permanent injunction and include therein the relief of mandatory injunction as also the damages for reason of being subsequent events, has been dismissed. 2. Mr. Manoj Bhardwaj appearing for the plaintiff submitted that the plaintiff laid a suit for permanent injunction alongwith an application under Order 39, Rule 1 and 2 CPC. Written statement to the plaint had been indeed in the meantime filed but issues were not framed. Before the plaintiff could get any interim protection, part of the property in plaintiff's possession was utilized by the respondents for widening a road adjoining his property. In the circumstances, the plaintiff sought amendment of the plaint and to include therein the subsequent event of his unauthorized dispossession and also to include the prayer for mandatory injunction seeking to be put back in possession and damages. The trial court has however by the impugned order dated 19.7.2018 cursorily on a misdirection dismissed the application for amendment of the plaint. 3. Mr. Manoj Bhardwaj for the plaintiff submitted that the trial court in dismissing the application for amendment under Order 6, Rule 17 CPC failed to take into consideration that stage of the suit where the issues had not been framed or that the nature of the suit as filed would not fundamentally change if the amendment sought was allowed inasmuch as the suit would reflect a subsequent event of the one for plaintiff's dispossession and also be for mandatory injunction and damages aside for permanent injunction as originally laid. It was submitted that the respondents - defendants (hereafter 'the defendants') would not be prejudiced by the amendment to the plaint for reason of the fact that they would be free to file an amended written statement to the amended plaint taking all relevant objections thereto as may be available to them. 4. Counsel for the defendants supported the impugned order dated 19.7.2018. 5. Heard. Considered. 6. Admittedly issues in the suit for permanent injunction laid by the plaintiff have not been framed and the trial not commenced. 4. Counsel for the defendants supported the impugned order dated 19.7.2018. 5. Heard. Considered. 6. Admittedly issues in the suit for permanent injunction laid by the plaintiff have not been framed and the trial not commenced. Admittedly as per the plaintiff's say set out in the amendment application subsequent to the filing of the suit, the plaintiff was unlawfully dispossessed from part of the suit property, in respect of which he had claimed in the first instance protection by way of injunction. This subsequent event of dispossession the plaintiff sought to bring on record of the suit by application for amendment under Order 6, Rule 17 CPC. The amendment thus clearly only sought to reflect the event subsequent to filing of the suit and in any event, the plaintiff was always at liberty to withdraw the suit with liberty to file a fresh and then file a composite suit for permanent injunction and mandatory injunction and damages - only that the alternative process would have been more cumbersome with service on the defendant in the freshly constituted suit being required afresh with resultant delays. 7. The trial court in my considered view appears to have taken a very mechanical view of the matter overlooking the dictum of the Apex Court as also this Court that amendment to pleadings should liberally be allowed unless they are subsequent to the framing of the issues, an after-thought or malafide. None of the aforesaid situations for disallowing amendments under Order 6, Rule 17 obtained in the present case. Counsel for the defendants are not in a position to deny that the plaintiff could have very sought to withdraw his suit with liberty to file afresh and then filed a suit for permanent injunction, mandatory injunction and damages founded upon facts on record. Only that such a process would have been more cumbersome for need to start the proceedings afresh and seek service of summons once again on the defendants. This Court cannot overlook the universal fact known to all that service of summons in a suit is a procedural bottleneck with potential of resulting in huge delays in adjudication of rights / lack of them. Resultantly I would quash and set-aside the order dated 19.7.2018 and allow the application under Order 6, Rule 17 CPC filed by the plaintiff. The plaintiff shall submit the amended plaint within 3 weeks before the trial court. Resultantly I would quash and set-aside the order dated 19.7.2018 and allow the application under Order 6, Rule 17 CPC filed by the plaintiff. The plaintiff shall submit the amended plaint within 3 weeks before the trial court. The defendants shall be free to take all manner of objections thereto as may be available to them, in accordance with law. 8. Petition stands disposed of accordingly.