Gopal Chand Batham v. Babulal Batham (D) Through Smt. Gora Bai
2018-10-05
SANJAY YADAV, VIVEK AGARWAL
body2018
DigiLaw.ai
JUDGMENT 1. Review of order dated 4.4.2017 passed in Writ Petition No. 8754/2012 is being sought vide present petition. 2. The writ petition under Article 227 of the Constitution of India was directed against the order dated 29.10.2012 passed in Civil Suit No. 27-A/2008; whereby, an application under Order 6 rule 17 Code of Civil Procedure 1908, preferred by the present petitioner was dismissed on the findings that if allowed, the same would change the nature of the suit and that the trial has already commenced. 3. Learned Single Judge vide order under Review upheld the order passed by the trial Court. The Review whereof is being sought on the contention that error apparent on the face of record has crept in; as by virtue of amendment the plaintiff sought amendment in the relief clause, because during the pendency of suit, the defendant No. 5 was placed in possession; therefore, decree of possession was accordingly proposed to be sought for that the plaintiff had valued the suit and and proposed to pay ad valorem court fees. It is urged that the trial Court misconstrued the contention of the defendants to be that of the plaintiff and thus erred in declining the amendment. It is contended that learned Single Judge glossed over the said aspect. As regard to the finding that the trial has commenced, it is urged that even affidavit under Order 18 Rule 4 CPC were not filed. Relying upon the decisions in Sushil Kumar Jain v. Manoj Kumar and another [ (2009) 14 SCC 38 ] and Mohinder Kumar Mehra v. Roop Rani Mehra and anothers [ (2018) 2 SCC 132 ], it is contended that merely because the issues were framed, the same would not tantamount to commencement of trial which could commence only when the affidavits are filed and the witnesses are cross-examined. The petition is being opposed. However when the contentions on behalf of the petitioner are tested on the anvil of the facts on record, the stand substantiated that learned Single Judge glossed over the vital fact that the trial Court misconstrued the contentions by the defendants to that of the plaintiff and that the trial had already not commenced. 4. In view whereof, the order dated 4.4.2017 passed in writ petition No. 8754/2012 is recalled.
4. In view whereof, the order dated 4.4.2017 passed in writ petition No. 8754/2012 is recalled. Instead of relegating the matter to the Writ Court, we deem it appropriate, in the interest of justice and to save further time as the suit is of 2003, allow the application filed by the plaintiff under Order 6 rule 17 CPC, let the amendment be incorporated within 15 days from the date of communication of this order. Consequential amendment, if any, within 15 days therehence. The trial Court is requested to decide the suit expeditiously; however, not later than 6 months from the date the consequential amendment, if any, is carried out. 5. The petition is disposed of finally in above terms. No costs.