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2018 DIGILAW 2 (ALL)

SANJEEV AGRAWAL v. NAGAR PALIKA SORON

2018-01-02

MANOJ KUMAR GUPTA

body2018
JUDGMENT Hon’ble Manoj Kumar Gupta, J.—The instant petition under Article 227 of the Constitution has been filed by the petitioners for setting aside the order dated 4.7.2017 passed the District Judge, Kasganj in Civil Revision No. 1 of 2016. By the said order, the District Judge has allowed the revision filed by Nagar Palika, the defendant/respondent, against the order dated 2.11.2015, by which the trial Court rejected the application seeking amendment in the written statement. The revisional Court has allowed the amendment application and has granted 20 days time to the plaintiff/petitioners to file replication, if any, against the amended pleadings. 2. The petitioners instituted original suit No. 238 of 1994 against the defendant/respondent seeking permanent prohibitory injunction restraining the defendant/respondent, Nagar Palika, Soron, Kasganj from interfering in their possession over the suit property or from carrying out demolition of the structures existing over it. The suit was contested by the Nagar Palika by filing a written statement. During the pendency of the suit, the defendant/respondent, Nagar Palika filed an application seeking amendment in the written statement. The trial Court rejected the amendment application by order dated 2.11.2015 primarily on the ground that the amendment sought was well within the knowledge of the Nagar Palika, consequently, pleadings in that regard should have been incorporated in the original written statement and not by way of amendment. The trial Court was of the opinion that in view of the proviso to Order 6 Rule 17 CPC as substituted by the Code of Civil Procedure Amendment Act, 2002, such amendment could not be allowed after commencement of the trial. Aggrieved by the said order, the Nagar Palika filed civil revision No. 1 of 2016. The same has been allowed by the revisional Court by the order impugned. 3. Counsel for the applicants submitted that the trial Court was justified in rejecting the amendment application in as much as the plea sought to be introduced by amendment was well within the knowledge of the defendant/respondent and consequently such plea could not be introduced after commencement of the trial having regard to proviso to Order 6 Rule 17 CPC. He further submitted that the revisional Court, without setting aside the aforesaid finding of the trial Court, has wrongly allowed the revision. 4. He further submitted that the revisional Court, without setting aside the aforesaid finding of the trial Court, has wrongly allowed the revision. 4. It is not in dispute that the suit was filed in the year 1994 and the defendant, Nagar Palika filed written statement on 21.7.1995. Thereafter issues were framed and the parties also led substantial part of their evidence. At this stage, the Nagar Palika filed amendment application, paper No. 105A1 seeking amendment in the plaint. By the amendment sought, the defendant sought to specify the number of the suit property. It was pleaded that the suit property is part of property bearing No. 693, measuring 0.494 hectare of Mauja Mohammad Sarai, Badaria, Pargana Faijpur, Badariya, District Kasganj. The said property belongs to Nagar Palika and neither the plaintiffs nor their ancestors had any concern with the same. It was stated in the amendment application that the said fact recently came to the knowledge of the officials of Nagar Palika when a report was submitted by the Tehsildar Soron on request by the erstwhile Executive Officer of the Nagar Palika. The application further states that by inadvertence, said fact could not be incorporated in the written statement filed through the earlier counsel. However, soon after receipt of legal advise, the amendment application had been filed. A perusal of the plaint reveals that although the plaintiffs have sought permanent injunction against the Nagar Palika restraining it from interfering in their possession over the suit property or from demolishing the structure existing over it, but in the entire plaint, the municipal number of the property has not been given. Only boundaries have been given at the foot of the plaint. In the written statement originally filed by the Nagar Palika, though the Nagar Palika specifically disputed the plaint allegation, but it failed to disclose the number of the suit property. It is, in the aforesaid circumstances that the amendment application was filed bringing on record the number of the suit property. The revisional Court has recorded a specific finding that the plea sought to be introduced by amendment would enable the Court to decide and settle the actual lis between the parties. The said finding of the revisional Court is not under challenge before this Court. The revisional Court has recorded a specific finding that the plea sought to be introduced by amendment would enable the Court to decide and settle the actual lis between the parties. The said finding of the revisional Court is not under challenge before this Court. The only submission is that the revisional Court could not have allowed the revision as the amendment sought was highly belated and barred by proviso to Order 6 Rule 17 CPC. 5. Order 6 Rule 17 CPC was substituted by Section 7 of the Act No. 22 of 2002 w.e.f. 1.7.2002. The amended provision reads thus : “17. Amendment of pleadings:—The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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 question 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 in spit of due diligence, the party could not have raised the matter before the commencement of trial.” 6. Sub-section (2) of Section 16 of the said Act specifically provides that the provisions of Rule 17, Order 6 of I Schedule as substituted by Section 16 of the Code of Civil Procedure (Amendment Act) 1999 and by Section 7 of the said Act shall not be applicable to pleadings filed before commencement of Section 16 of Code of Civil Procedure (Amendment) Act 1999 and Section 7 of the said Act. Since in the instant case, written statement was filed in the year 1995, which was much before the commencement of Act No. 22 of 2002 w.e.f. 1.7.2002, consequently, the amended provision would not be applicable. Thus, in the opinion of the Court, the trial Court was not justified in rejecting the amendment application by applying the amended provision of Order 6 Rule 17 CPC. 7. The findings of the revisional Court that the amendment sought is necessary for the purpose of determining the real controversy between the parties is not under challenge. Thus, in the opinion of the Court, the trial Court was not justified in rejecting the amendment application by applying the amended provision of Order 6 Rule 17 CPC. 7. The findings of the revisional Court that the amendment sought is necessary for the purpose of determining the real controversy between the parties is not under challenge. Even this Court is also of the opinion that the pleading relating to municipal number over which the suit property is situated, is necessary for determining as to whether the plaintiffs have any right over it or not, as claimed in the suit and therefore, this Court does not find any illegality in the order of the revisional Court to warrant interference in exercise of supervisory jurisdiction under Article 227 of the Constitution. 8. The petition lacks merit and is dismissed.