Babu Son of Hazari by Case Gurjar v. Raisingh Son of Kanhaiyalal
2018-01-16
SANJEEV PRAKASH SHARMA
body2018
DigiLaw.ai
ORDER : 1. The petitioner by way of this writ petition assails the order dated 04.12.2017 passed by the Additional Sessions Judge, BandiKui District, Dausa, whereby the application moved by the plaintiffs-respondents under Order 6 Rule 17 CPC has been partially allowed. 2. Learned counsel for the petitioners submits that as per Order 6 Rule 17 CPC after trial has started, no amendment could be made in the pleadings. He further submits that the subsequent purchaser had already been impleaded as a party to the suit in the year 2009 and application regarding impleadment was moved in 2007 but no amendment was sought at that stage. Issues have already been framed and the case was listed for evidence of the plaintiff. It is submitted that the application for amendment has been moved belatedly with the sole purpose to delay the proceedings. 3. Counsel for the petitioner relies on law laid down by this Court in the case of Ramniwas Vs. Board of Revenue, Ajmer & Ors.: 2014 (3) DNJ (Raj.) 1052, wherein on account of delay in filing application for amendment, the application under Order 6 Rule 17 was disallowed. He also relies on 2015 WLC (Raj.) UC 505: Aalok Khanna Vs. Raj Darshan Hotel Pvt. Ltd., wherein this Court laid down the same principle stating that defendant, who seeks to introduce amendment was having knowledge of the facts and after commencement of trial moved application at the appellate stage and therefore, was denied to move such amendment. 4. In view thereof, learned counsel submits that the order is liable to be set aside. 5. Having heard learned counsel, this Court is inclined to accept the submissions of respondents. The plaintiffs-respondents had filed a suit for specific performance of a contract. During the pendency of his suit, the subject property was sold to the subsequent purchasers and by way of this amendment, he wants to bring the said facts on record. This is so as the subsequent purchasers have already been impleaded as a party to the suit and therefore, averments relating to the subsequent purchasers need to be part of the plaint. Thus, the nature of the suit does not in any manner get affected on account of making amendments in the plaint. 6. The Supreme Court in Chakreshwari Construction Private Limited Vs.
Thus, the nature of the suit does not in any manner get affected on account of making amendments in the plaint. 6. The Supreme Court in Chakreshwari Construction Private Limited Vs. Manohar Lal: (2017) 5 SCC 212 while setting aside the order dismissing application under Order 6 Rule 17 by the High Court allowed amendment in the pleadings noted as under: “13. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. In the case of Revajeetu Builders and Developers vs. Narayanaswamy & Sons and Others, (2009) 10 SCC 84 , this Court, after examining the entire previous case law on the subject, culled out the following principle in Para 63 of the judgment which reads as under: “63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 14. Applying the aforesaid principle of law to the facts of the case at hand, we are of the considered opinion that the amendment proposed by the appellant so also the permission sought for filing additional documents deserved to be allowed. 15.
These are only illustrative and not exhaustive.” 14. Applying the aforesaid principle of law to the facts of the case at hand, we are of the considered opinion that the amendment proposed by the appellant so also the permission sought for filing additional documents deserved to be allowed. 15. It is for the reasons that firstly, the amendment proposed did not change the nature of the case originally set up by the appellant in the eviction petition; Secondly, the amendment did not introduce any fresh cause of action; Thirdly, the amendment was relevant for deciding the question of subletting and availability of alternative accommodation with the respondent; Fourthly, the facts proposed in the amendment not being in the personal knowledge of the appellant and having obtained from the concerned State department recently, the same could be allowed to be brought on record for its consideration; Fifthly, no prejudice was likely to be caused to the respondent, if the applications had been allowed because the respondent in such eventuality would have got an opportunity to make consequential amendment in his written statement and file additional documents in rebuttal; and lastly, in order to prove the case, the amendment proposed and permission to file documents should have been granted. 16. It is true that there was some delay on the part of the appellant in filing the applications but, in our opinion, the appellant had explained the delay. One cannot dispute that in appropriate cases, the parties are permitted to amend their pleadings at any stage not only during the pendency of the trial but also at the first and second appellate stage with the leave of the Court provided the amendment proposed is bona fide, relevant and necessary for deciding the rights of the parties involved in the lis. 17. Similarly, the law also permits the parties to file additional evidence at any stage of the trial [Order 7 Rule 14 (3)] including at the first or/and second appellate Stage (Order 41 Rule 27) with the leave of the Court provided a case is made out to seek such indulgence.” 7. In a recent case reported in 2017 (14) Scale 355: Raj Kumar Bhatia Vs.
In a recent case reported in 2017 (14) Scale 355: Raj Kumar Bhatia Vs. Subhash Chander Bhatia the Apex Court held as under: “In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21 September 2013 that an amendment of the plaint was allowed by the Trial Court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff.” 8. Thus, in view of the law as laid down above, this Court does not find any reason to interfere with the order passed by the trial Court allowing the application under Order 6 Rule 17. 9. The writ petition is accordingly dismissed. No costs.