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2019 DIGILAW 1158 (RAJ)

Ramji Lal v. Civil Judge, Jr. Div. , Bamanwas

2019-04-16

SANJEEV PRAKASH SHARMA

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JUDGMENT : Sanjeev Prakash Sharma, J. 1. The petitioner by way of this writ petition assails the order dt 27.8.2009 passed by Civil Judge (Jr. Division), Bamanwas Distt. Sawai Madhopur (Raj.) whereby the application moved under Order 6. Rule 17 CPC has been rejected in a suit preferred by the petitioner-plaintiff for permanent injunction. 2. Learned Counsel appearing for the petitioner submits that earlier a suit seeking permanent injunction was filed by the respondents-defendants bearing No. 131/1992 as against the petitioner, the same came to be dismissed by the trial Court on 7.11.2001 and as per the judgment the possession on the property was held to be of the petitioner and the submissions of the respondents that the property was handed over to them, was not accepted by the concerned trial Court, the said judgment came to be upheld in first appeal as well as second appeal before this Court whereafter the petitioner apprehending of being dispossessed had preferred the present suit seeking permanent injunction. During the course of pendency of the suit, the respondents forcibly dispossessed the petitioner from premises and, therefore, an application was moved seeking amendment under Order 6 Rule 17 CPC claiming mandatory injunction. Learned Counsel submits that trial Court has fallen in error in rejecting his application treating that a new cause of action has arisen. 3. Par contra, learned Counsel appearing for the respondents submits that in the previous suit preferred by the respondents, Commissioner report mentions of the respondents having possession on the property and a temporary injunction was also granted in his favour in the suit preferred by them. Thus, the petitioner was never in possession of the property and, therefore, the amendment which they are now seeking would be a change of the nature of the suit. He further submits that suit was preferred on 5:1.2017 and the incident is said to have been occurred between 14 and 16 January, 2017 while the amendment sought is on 30.07.2008. Thus, No explanation has come forward for the delay in filing the application under Order 6 Rule 17 CPC, and therefore, the amendment ought not to be allowed. Learned Counsel relies on the judgment passed by this Court reported in 2015 (1) DNJ (Raj.) 431-Meera Bat (Suit.) vs. Amritlal & Anr. Thus, No explanation has come forward for the delay in filing the application under Order 6 Rule 17 CPC, and therefore, the amendment ought not to be allowed. Learned Counsel relies on the judgment passed by this Court reported in 2015 (1) DNJ (Raj.) 431-Meera Bat (Suit.) vs. Amritlal & Anr. wherein the similar circumstances on account of delay the application under Order 6 Rule 17 CPC was disallowed and upheld by this Court. 4. I have considered the submissions and finds that the respondents had preferred a suit for seeking permanent injunction praying that the petitioner should not interfere in the peaceful possession. In the said suit issues were framed and as per the issue Nos. 1 and 2 regarding the possession the Court came to the conclusion that respondents did not have the possession of the property and the property was always in the possession of the petitioner; it also concluded that Commissioner's report cannot be read as it was an ex parte report; it also came to the conclusion that the statements of the witnesses clearly proved that the petitioner was always his possession and the petitioner never handed over the property to the respondents and thus, the suit for permanent injunction was dismissed. Appeal against the said judgment came to be dismissed by the appellate Court and this High Court in Second appeal No. 256/2006 affirmed the orders in its judgment dt. 22.11.2006. Thus, it cannot be said that the petitioner was not in possession on the day of filing of the suit. So far as subsequent facts or events which came into knowledge or have happened during the pendency of the suit are concerned, the same can always be brought on record by moving appropriate application under Order 6 Rule 17 CPC and a suitable prayer can also be added. In case of Revajeetu Builders and Developers vs. Narayana swamy and Sons and Others (2009) 10 SCC 84 the Supreme Court has laid down following guidelines with regard to deciding application under Order 6 Rule 17 CPC:- "Factors to be taken into consideration while dealing with applications for amendments 63. On critically analyzing 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. On critically analyzing 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 VI Rule 17. These are only illustrative and not exhaustive." The same were again affirmed by the Supreme Court in the judgment reported in case of N.C. Bansal vs. Uttar Pradesh Financial Corporation and Ors., 2018 (2) SCC 347 . In view of the Apex Court judgments cited supra, the judgment passed by this Court in Meera Ben (Smt.) (supra) would stand distinguished. 5. In view thereof, keeping in view the law as laid down by the Supreme Court and the facts which have come on record I find that the application moved by the petitioner ought to have been allowed as it was not changing the nature of the suit which is essentially for seeking injunction. In certain cases, where permanent injunction is sought initially and during the course of suit events have occurred which require change of prayer for seeking mandatory injunction amendment ought to be allowed. 6. Accordingly, this writ petition is allowed/The order dt. 27.8.2009 passed by Civil Judge (Jr. Division), Bamanwas Distt. Sawai Madhopur (Raj.) is quashed and set aside. The application under Order 6 Rule 17 CPC would stand allowed and amended plaint be taken on record and the trial Court to proceed accordingly.