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Rajasthan High Court · body

2018 DIGILAW 2084 (RAJ)

Uchab Kanwar v. Civil Judge No. 3, Bikaner

2018-10-09

DINESH MEHTA

body2018
JUDGMENT : DINESH MEHTA, J. 1. The present writ petition has been preferred laying challenge to order dated 16.8.2018 passed by the Judge, Garm Nayaylaya, Bikaner (hereinafter referred to as the ‘trial court’) whereby he has rejected the application under Order VI Rule 17 of the Code of Civil Procedure filed by the petitioner. 2. Succinctly stated the facts leading the petitioner to approach this Court are that the plaintiff-petitioner herein had filed a suit for permanent and mandatory injunction against the defendant, inter alia, indicating that she being the owner is having possession of the disputed “Makan” and “Bada”. Asserting her status as stated above, she prayed for an injunction qua Municipality, Deshnok and private defendants that they be restrained from interfering in her possession over the suit property. 3. In the suit aforesaid, which was filed on 24.11.2011, the defendants filed their written statement way back on 3.1.2012 and refuted the assertion of ownership and possession made by the plaintiff. The defendants asserted that neither the plaintiff nor her alleged predecessor even had title of the suit premises and on the contrary, they maintained that the disputed land belongs to municipality. The defendants alleged that the plaintiff has encroached upon the municipal land and raised construction illegally. Based on the pleadings of the rival parties, on 16.09.2014 the trial court framed the issues and, thereafter, proceeded to amend the same on 4.6.2016. Since then the plaintiff was granted at least 15 opportunities to lead evidence. Having failed in her attempts to protract the proceedings any further, on 06.07.2018, the petitioner filed an application for amending the plaint captioned as an application under Order VI Rule 17 of the Code of Civil Procedure. 4. By way of the said application, the petitioner sought a leave to amend her plaint and tried to incorporate para No. 6(a) and prayer clause 1(a) asserting her title over the land and sought a declaration that she be declared as the sole owner of the contentious property. 5. The defendants, opposed aforesaid application seeking amendment and contended that the application for amendment was not only frivolous and vexatious, but the same was an attempt to abuse the process of law. 5. The defendants, opposed aforesaid application seeking amendment and contended that the application for amendment was not only frivolous and vexatious, but the same was an attempt to abuse the process of law. The defendants also reisted the application by contending that if the proposed amendment is allowed, the same would change the nature of the suit and the present suit would be converted into a suit for declaration. Such suit for declaration is impermissible in law for want of requisite notice as contemplated under Section 304 of the Rajasthan Municipalities Act, 2009, contended the defendants. It was also submitted that the plaintiff was required to pay court fee based on the market value of the subject property, if she wants a declaration of her title. 6. The learned trial court heard the parties at length and rejected the application dated 6.7.2018 filed by the petitioner vide its order dated 16.8.2018. Learned court below observed that soon after filing of the written statement, by the defendant on 3.1.2012, the plaintiff had sought amendment in plaint by way of an application under Order VI Rule 17 of the Code of Civil Procedure, which had been rejected earlier. The trial court has held that the amendment in question cannot be permitted as the trial had commenced, while also highlighting that if the amendment as prayed in para No. 5 and 6 of the application is allowed, the present suit would be converted into a suit for declaration, for which payment of requisite court fees based on the market value of the property was essential. 7. Assailing the order dated 16.8.2018, Mr. Surendra Thanvi, learned counsel for the petitioner submitted that the court below has erred in rejecting the petitioner's amendment application. He submitted that the learned trial court has non-suited the petitioner, inter alia, observing that the trial of the suit has commenced. In this regard, he contended that the case is at the stage of plaintiff's evidence and as such, it cannot be said that the trial has commenced. Learned counsel further contended that if the amendment application of the petitioner is allowed and leave to insert requisite averments is granted and the petitioner is allowed to seek a declaration of her title over the contentious property, it would not change the nature and scope of the suit. Learned counsel further contended that if the amendment application of the petitioner is allowed and leave to insert requisite averments is granted and the petitioner is allowed to seek a declaration of her title over the contentious property, it would not change the nature and scope of the suit. He urged that requisite pleadings about the petitioner's title are already available in the plaint and the petitioner has only sought insertion of two paragraphs; one being paragraph No. 6(a) and another in prayer clause 1(a), which is not likely to prolong the suit proceedings. 8. I have heard the learned counsel for the petitioner and perused the material available on record. 9. It is not in dispute that the suit seeking mandatory injunction had been filed way back on 24.11.2011 and the defendant Municipality had filed its written statement on 30.1.2012, specifically asserting that the land in question belongs to the Municipality. It was also mentioned that the petitioner has encroached upon the same and raised illegal construction over the huge land ad measuring 4000 sq. yards. 10. Considering the pleadings of rival parties, the learned trial court had firstly framed issues on 16.9.2014 and, thereafter, amended the same on 4.6.2016. Since then, the petitioner has been seeking adjournment on one pretext or the other and has taken recluse of one application after another, including an earlier application under Order VI Rule 17 of the Code of Civil Procedure. 11. In July, 2018 the petitioner suddenly realized that she should seek a declaration of title/ownership in relation to the possession of the property, she was enjoying, for which she moved the court by way of filing the amendment application under consideration. The stand of the defendant was very much known to the plaintiff when the written statement was filed on 3.1.2012, clearly questioning the petitioner's title over the property. If the petitioner was vigilant about her purported rights, it was incumbent upon her to have filed the amendment application, then and there. But she did not get up from her slumber for more than 6 years and has suddenly sprung into action simply with a view to bring the suit back to square one. 12. According to me, the proposed amendment will certainly change not only the nature of the suit, but will also change the very frame and fulcrum of the suit. 12. According to me, the proposed amendment will certainly change not only the nature of the suit, but will also change the very frame and fulcrum of the suit. Neither any new fact has come into being nor has any cause accrued to the petitioner for seeking amendment in the plaint already filed by her. 13. The amendment application filed by the petitioner is clearly hit by the proviso to Order VI Rule 17 of the Code of Civil Procedure, which puts a clear embargo on an amendment in the pleadings, if the trial in the suit has begun. It is not in dispute that the issues had been framed and the matter is at the stage of evidence. 14. Mr. Thanvi placed reliance upon the judgment dated 20.12.2013 passed by this Court in SBCWP No. 13407/2007 and 13408/2012: Vasudev v. Anar Devi and contended that the petitioner's case is similar and the amendment as prayed by her deserves to be granted. 15. A scrutiny of the facts involved in the case of Vadudev v. Anar Devi (supra) shows that on the basis of the pleadings of the parties, the learned trial court had earlier framed 3 issues, out of which, issue No. 1 and 2 related to the declaration of the title of the plaintiff, which stood deleted, as there was no prayer for granting declaration in the plaint. Immediately after deletion of such issue, the plaintiff had filed an application under Order VI Rule 17 of the Code and sought insertion of requisite amendments, while also seeking amendment in the valuation of the suit for the purpose of court fees and jurisdiction also. 16. In face of these distinguishing facts, particularly, as the learned trial court has deleted the issue Nos. 1, 2 and 3 vide order dated 25.4.2012, the coordinate Bench of this Court was pleased to allow the writ petition and consequently the amendment application. Apart from above, the said case has not proceeded further, except framing of the issue. It appears that the proviso to Order VI Rule 17 Code of Civil Procedure has not been brought to the notice of the Court. The Court thus proceeded to decide the amendment application observing that such amendment would determine the real questions and controversy between the parties. It appears that the proviso to Order VI Rule 17 Code of Civil Procedure has not been brought to the notice of the Court. The Court thus proceeded to decide the amendment application observing that such amendment would determine the real questions and controversy between the parties. Whereas the present petitioner despite being aware of the stand in the written statement, has been sleeping over his purported rights. 17. The case cited by Mr. Thanvi is, therefore, distinguishable on facts. 18. Keeping in mind the principle enunciated by Hon'ble Supreme Court in Revajeetu Builders & Developers v. Narayanaswami & Sons (2009 AIR SCW 6644) and in the case of Mashyak Grih Nirman Sahakari Sansthan Maryadit v. Usman Habib Dhuka reported in (2013) 9 SCC 485 : AIR 2013 SC 3188 duly followed by this Court in Gafoor Khan v. Ramjan Khan reported in 2018 (2) WLN 187 (Raj.), the amendment as prayed cannot be allowed. 19. A reference may also be made of judgment of Hon'ble the Supreme Court in case of Sushil Kumar Jain v. Manoj Kumar reported in (2009) 14 SCC 38 : AIR 2009 (SC) 2544 wherein it has been held that the trial shall be deemed to have commenced on the framing of the issue. It will be worthwhile to reproduce relevant para 16 of the said judgment, which reads thus:— “16. In view of the aforesaid decision and in view of the admitted fact that not even the issues have yet been framed, documents have not yet been filed, evidence has not yet been adduced, we are of the view that the proviso to Order 6 Rule 17 of the CPC has no manner of application as the trial has not yet commenced.” 20. Relying upon the said judgment, this Court has recently rejected identical writ petition being SBCWP No. 13032/2018 (Piyush Bhushan Sharma v. Mahesh Kumar Sharma, decided on 6.9.2018), while observing as under:— “As an upshot of the aforesaid discussion, this Court is of the considered opinion that the amendment as prayed for by the petitioner was clearly impermissible by virtue of proviso to Order VI Rule 17 of the Code of Civil Procedure as trial in the subject suit has commenced. If the amendment as prayed for by the petitioners is allowed, it would not only change the scope of the suit in its entirety, but would also lead to its denovo trial.” 21. Taking guidance from these judgments, I am of the considered opinion that the amendment application filed by the petitioner has rightly been rejected by the learned trial court. 22. Finding no error in the impugned order dated 16.8.2018, the writ petition is dismissed.