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2019 DIGILAW 1184 (HP)

Anil Kumar v. Tara Dutt Sharma

2019-08-19

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioner/Judgment Debtor has challenged order, dated 05.03.2019, passed by the Court of learned Senior Civil Judge, Shimla in CMA No. 174-6 of 2018 in Execution Petition No. 55/10 of 10/13, vide which, an application filed by the petitioner under Order VI, Rule 17 of the Code of Civil Procedure for amendment in the reply filed to application filed by the Decree Holder under Order XXI, Rule 32 of the Code of Civil Procedure, has been dismissed. 2. Brief facts necessary for the adjudication of present petition are that the respondent herein filed a suit against the petitioner, i.e. Suit No. 213/1 of 97/93 for permanent prohibitory injunction, which was decreed in favour of the respondent vide judgment and decree, dated 27.09.1999, whereby the petitioner herein was restrained from interfering in any manner in the ownership and possession of land comprised in Khata/Khatauni No. 6/6 min, Khasra No. 22, measuring 707 square feet of the plaintiff, situated in Mauja Kufri, Koti Kufri Bazaar, Pargana Dharthi, Tehsil and District Shimla. 3. An application was filed under Order XXI, Rule 32 read with Section 151 of the Code of Civil Procedure by the Decree Holder before the learned Executing Court with the following prayers: ?(i) The respondent/JD may be ordered to be detained in civil prison and his property be also attached till he comply with the decree passed by this learned Court. (ii) That the respondent/J.D. be directed to remove all construction, projection extended on the set backs of the applicant upon Khasra No. 392, remove drainage pipes and obstruction upon Kh. No. 397, the common passage leading to the house of the applicant and restore the site to its original condition at the time of passing of the decree by appointing local commissioner under whose supervision the decree passed by this Court be complied with. (iii) Any other relief which this learned Court deems fit may also be granted in favour of the applicant in the interest of law and justice." This application was filed in November, 2010. Reply to the said application was filed by the petitioner, who denied the allegations made in the application. 4. (iii) Any other relief which this learned Court deems fit may also be granted in favour of the applicant in the interest of law and justice." This application was filed in November, 2010. Reply to the said application was filed by the petitioner, who denied the allegations made in the application. 4. The contention of the Decree Holder in the application filed before the learned Executing Court was that the Judgment Debtor had deliberately and willfully disobeyed the decree passed against him by encroaching upon the portion of set backs left by the Decree Holder by constructing a residential room on the common passage in Khasra No. 397, which was on the back side of shops standing on Khasra Nos. 395, 394 & 393 and that respondent had raised construction behind Khasra No. 393 and closed the passage leading towards Khasra No. 392 of the Decree Holder. As already mentioned above, the same was denied by the Judgment Debtor by way of his reply, which was filed in the month of February, 2012. 5. Thereafter, an application was filed by the Judgment Debtor under Order VI, Rule 17 read with Section 151 of the Code of Civil Procedure before the learned Executing Court praying for permission to amend the reply filed by him to the application filed under Order XXI, Rule 32 of the Code of Civil Procedure by the Decree Holder. It was mentioned in the application that the Judgment Debtor intended to amend para-4 of its reply by incorporating therein the fact that the decree stood passed on the basis of old revenue record, but Execution was preferred on the basis of new record, i.e., post settlement revenue record and as these facts came to the knowledge of the Judgment Debtor only while preparing the case for leading evidence, therefore, the amendment was being sought as it was necessary and essential for proper adjudication of the controversy. 6. This application stands rejected by the learned Court below by way of impugned order. Learned Executing Court while dismissing the application held that Judgment Debtor had suffered a decree of permanent prohibitory injunction on 27.09.1999. Decree Holder filed a petition under Order XXI, Rule 32 of the Code of Civil Procedure on 12.11.2010, alleging that Judgment Debtor has disobeyed the decree by encroaching upon the land of the Decree Holder. Learned Executing Court while dismissing the application held that Judgment Debtor had suffered a decree of permanent prohibitory injunction on 27.09.1999. Decree Holder filed a petition under Order XXI, Rule 32 of the Code of Civil Procedure on 12.11.2010, alleging that Judgment Debtor has disobeyed the decree by encroaching upon the land of the Decree Holder. Reply to the petition stood filed by the Judgment Debtor on 28.02.2012, denying the allegations of the Decree Holder. Issues stood framed on 20.03.2012 and Decree Holder concluded his evidence on 12th July, 2017. Since 11th August, 2017, the case was being listed for recording J.D's evidence and it was the 9th opportunity on 13.09.2018, when JD moved the application under Order VI, Rule 17 of the Code of Civil Procedure, seeking amendment of the reply filed on 28.02.2012. Learned Court after discussing the respective stand of the parties, held that the very fact that application stood filed after availing nine opportunities to lead evidence revealed smacks of malafides on the part of the Judgment Debtor and that it could not be demonstrated that application could not have been filed earlier by the Judgment Debtor despite due diligence. Learned Court also held that the proposed amendment, if allowed, would change the nature of the case and result into a de novo trial. On these basis, learned Executing Court dismissed the application filed by the Judgment Debtor by holding that the proposed amendment was not necessary and essential for proper adjudication of the matter in hand. 7. Feeling aggrieved, the Judgment Debtor has filed the present petition. 8. I have heard learned counsel for the parties and have also gone through the impugned order as well as the other documents appended with the petition. 9. As has been observed by the learned Executing Court in the impugned order, it is not in dispute that the decree was passed in favour of the Decree Holder and against the Judgment Debtor of permanent prohibitory injunction on 27.09.1999. It is also not in dispute that the petition under Order XXI, Rule 32 of the Code of Civil Procedure was filed as far back as on 12.11.2010 and the Judgment Debtor filed his reply to the said application on 28.02.2012. Application seeking amendment in the reply so filed, was filed in September, 2018. It is also not in dispute that the petition under Order XXI, Rule 32 of the Code of Civil Procedure was filed as far back as on 12.11.2010 and the Judgment Debtor filed his reply to the said application on 28.02.2012. Application seeking amendment in the reply so filed, was filed in September, 2018. There is no cogent explanation given in the application as to why the application praying for amendment of the reply could not be filed earlier. It is not the case of the petitioner that proposed amendments were subsequent developments and, therefore, the same could not be incorporated at the time when the reply was filed earlier or by moving an appropriate application for amendment of the reply within some reasonable time after filing of the reply. This clearly demonstrates that the petitioner has not been able to demonstrate that proposed amendments could not be incorporated earlier in the reply despite due diligence. 10. There is yet another relevant point and the same is filing of the application seeking amendment of the reply after availing nine opportunities to lead evidence. First of all, this Court fails to understand as to why learned Executing Court gave nine opportunities to the petitioner to lead his evidence. Be that as it may, it is but evident from the record that as the petitioner had failed to lead his evidence before the learned Executing Court despite having availed nine opportunities, filing of the application under Order VI, Rule 17 of the Code of Civil Procedure at a belated stage was nothing but an afterthought and the application was filed just to gain some more time. It is reiterated that whether or not the proposed amendments, be it in the suit or written statement, application or reply, as the matter may be, are necessary for the adjudication of the lis or not, is an issue which the Court has to take into consideration after it comes to the conclusion that the proposed amendments could not be earlier incorporated in the pleadings by the party concerned despite due diligence. In the present case, the petitioner has not been able to pass the said test, as it is writ large on the face of the record that the application was filed at a belated stage, i.e., after six years of the reply been filed, amendment in which was sought and that too after availing nine opportunities to lead evidence. 11. In this view of the matter, as this Court finds no perversity with the order, dated 05.03.2019, passed by the learned Court below which has dismissed the application filed under Order VI, Rule 17 read with Section 151 of the Code of Civil Procedure, this petition being devoid of any merit, is dismissed. Miscellaneous applications, if any, also stands disposed.