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2019 DIGILAW 1924 (RAJ)

Ravindra v. Kanta

2019-07-08

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - These two writ petitions have been preferred against the common order dated 24.01.2017, passed by the learned Judicial Magistrate, No.2, Sriganganagar (hereinafter referred to as 'the learned Trial Court'), vide which two applications of the petitioner, one under Order 6, Rule 17 of the Code of Civil Procedure, 1908 and another under Order 7, Rule 14 of the Code of Civil Procedure, both dated 04.12.2015, were rejected. 2. Narrating in brief, the facts relevant for the present purposes are that the plaintiff (petitioner herein) instituted a suit for permanent injunction against the defendants (respondents herein), inter alia asserting his possession over the disputed land. The respondents-defendants filed written statement claiming their possession over the subject land. 3. On the basis of the pleadings of the parties, following issues came to be framed by the Trial Court on 30.03.2015:- 4. When the suit was at the stage of plaintiff's evidence, the petitioner moved the above referred applications on 04.12.2015, with averments that in March, 2013, petitioner's son has constructed a shop on some part of the contentious land and since then, he has been carrying on his business of purchase and sale of tyres. A prayer was made that he be permitted to amend the plaint in order to bring these subsequent developments and produce documents in connection therewith. 5. The Trial Court rejected the application seeking amendment under Order 6, Rule 17 of the Code of Civil Procedure essentially because the same had been filed at a belated stage; when the trial had commenced. While rejecting the application seeking amendment, the Trial Court observed that the petitioner will be free to lead appropriate oral evidence with a view to prove his possession. The petitioner's other application under Order 7, Rule 14 of the Code of Civil Procedure has, however, been rejected considering the fact that the petitioner's request for amendment has been turned down. 6. The first writ petition being S.B. Civil Writ Petition No.8093/2017 lays challenge to the order dated 24.01.2017, so far as it relates to rejection of petitioner's application under Order 6, Rule 17 of the Code of Civil Procedure. The other writ petition being S.B. Civil Writ Petition No.8099/2017 impugns rejection of petitioner's application under Order 7, Rule 14 of the Code of Civil Procedure. 7. Mr. The other writ petition being S.B. Civil Writ Petition No.8099/2017 impugns rejection of petitioner's application under Order 7, Rule 14 of the Code of Civil Procedure. 7. Mr. Saruparia, learned counsel for the petitioner submitted that the learned Trial Court has erred in rejecting petitioner's amendment application on the ground of delay and laches. He argued that the amendment, as prayed by the petitioner deserves to be allowed as it would neither change nature of the suit nor would it prejudice the respondents in any manner. In support of his contention, learned counsel pointed out that the matter is at the stage of plaintiff's evidence and trial of the suit, as a matter of fact has not commenced, even if the issues have been framed on 30.03.2015. 8. Mr. Saruparia further submitted that the Trial Court, while disposing of the applications, has observed that the petitioner will be free to lead evidence in support of his assertion regarding possession, yet has rejected the petitioner's application under Order 7, Rule 14 of the Code of Civil Procedure. He argued that the order of the Trial Court is contradictory, inasmuch as once the court has given him opportunity to lead evidence, it ought not to have rejected petitioner's amendment application, because petitioner will not be able to lead oral/documentary evidence in absence of corresponding pleadings. While reading operative portion of the impugned order, he pointed out that the Trial Court has held that plaintiff intends to prove the physical possession through the Court. Having read the relevant part, he argued that merely grant of amendment application can neither be construed to be a plaintiff's attempt to prove the possession through the Court nor can the same be a ground to reject an amendment application. 9. Mr. Goyal, learned counsel for the respondents defendants submitted that the learned Trial Court has passed just and reasonable order in the factual matrix of the case and this Court, in its supervisory jurisdiction, should not interfere in such discretionary order. Responding to petitioner's argument regarding delay, Mr. Goyal, learned counsel for the respondents, argued that according to the petitioner's own assertion, his son had constructed a shop and started business in 2013, such being the position, the petitioner's amendment application filed on 04.12.2015, seeking statement was highly belated, particularly when the issues had been framed by the Court on 30.03.2015. Responding to petitioner's argument regarding delay, Mr. Goyal, learned counsel for the respondents, argued that according to the petitioner's own assertion, his son had constructed a shop and started business in 2013, such being the position, the petitioner's amendment application filed on 04.12.2015, seeking statement was highly belated, particularly when the issues had been framed by the Court on 30.03.2015. Learned counsel argued that if the amendment as prayed for is allowed, it would take the suit back to square one and the respondents will be required to file amended written statement requiring even the issues to be amended. He argued that the petitioner-plaintiff ought to have been vigilant and his inaction for more than a period of 2 years cannot be ignored/condoned by the Court. The amendment should not be allowed simply because it is not likely to cause prejudice to any of the parties, he argued. 10. Having heard learned counsel for the parties and upon perusal of the material available on record, this Court is of the considered view that the petitioner was negligent and has failed to bring the subsequent facts by moving appropriate application with requisite promptitude. Though the construction of the shop on the contentious site was raised in March, 2013 and petitioner's son started his business thereupon, yet, the petitioner did not deem it appropriate to bring those facts on record. The petitioner's amendment application having been filed after more than 2 years is belated and the same has been rightly rejected by the Trial Court, given the fact that the issues have been framed on 30.03.2018 and trial had commenced. 11. It is true, that while dealing with the amendment application under Order 6, Rule 17 of the Code of Civil Procedure, the Courts may, in appropriate case, adopt a bit liberal approach, but, then in such cases, the plaintiff is required to satisfy the Court that if the amendment sought for is not granted, it would prejudice his cause. In other words, the relevant consideration, while deciding an amendment application is, "whether it would prejudice the applicant's cause, if the amendment sought for is not granted"; rather than the fact that "if the amendment is allowed, it would not prejudice the cause of the opposite party". 12. In the present case, the entire argument of Mr. In other words, the relevant consideration, while deciding an amendment application is, "whether it would prejudice the applicant's cause, if the amendment sought for is not granted"; rather than the fact that "if the amendment is allowed, it would not prejudice the cause of the opposite party". 12. In the present case, the entire argument of Mr. Saruparia is that if the amendment application is allowed, it would not prejudice the case of the defendants. Such statement cannot be a valid reason to allow an amendment application. The rules of procedure are not subservient to the convenience. A procedure cannot be given a go-bye, simply because it would not prejudice the opposite party. 13. This Court however agrees with the contention of Mr. Saruparia that the following reasoning given by the Trial Court for rejecting amendment application is unsustainable:- Needless to state that mere grant of amendment application does not amount to proving of the fact/assertion made in the application. The party introducing the amendment has to prove the facts incorporated. The above reasoning given by the Trial Court is untenable and the order impugned deserves to be set aside to this extent. 14. On overall appraisal of the facts obtaining in the case at hand, this Court does not find any reason to interfere in the order impugned passed by the Trial Court. Rejection of petitioner's amendment application is hereby affirmed, though for different reasons. 15. So far as the rejection of petitioner's application under Order 7, Rule 14 of the Code of Civil Procedure, being subject matter of writ petition No.8099/2017 is concerned, this Court is of considered opinion that the learned Trial Court has fallen into a manifest error of law. The application seeking production of documents on record has been rejected only because the amendment application had been rejected. 16. A perusal of the finding recorded by the Trial Court, while deciding amendment application, reveals that the Court has held it to be a matter of evidence and thus kept it open for the plaintiff to lead evidence in this regard. On the one hand, the Court permitted evidence to be led but on the other hand, has rejected petitioner's application under Order 7, Rule 14 of the Code of Civil Procedure. 17. A simple look at the order impugned, passed by the Trial Court, shows inconsistency in the reasoning. On the one hand, the Court permitted evidence to be led but on the other hand, has rejected petitioner's application under Order 7, Rule 14 of the Code of Civil Procedure. 17. A simple look at the order impugned, passed by the Trial Court, shows inconsistency in the reasoning. Once the Court has permitted the petitioner to lead evidence, it ought not to have rejected the petitioner's application under Order 7, Rule 14 of the Code of Civil Procedure seeking production of the documents in support of the possession. 18. As noticed above, the fact as to whether the plaintiff's son has constructed a shop and carrying on business therein from March, 2013, is a matter of evidence to be proved by the petitioner in support of his assertion of having possession of the disputed land. Regardless of the fact that such averments are absent in the plaint, he can very well lead oral and ocular evidence in a bid to prove his long possession. The petitioner's assertion about construction and opening of the shop, if can be proved by oral evidence, why can't it be permitted to be proved with the help of documentary evidence ought to have been pondered by the Court below. 19. This being the position, the impugned order dated 24.01.2017 rejecting the petitioner's application under Order 7, Rule 14 of the Code of Civil Procedure is clearly illegal, for which, it is quashed and set aside. 20. Hence, Writ Petition No.8093/2017 is dismissed, whereas Writ Petition No.8099/2017 is allowed. The impugned order dated 24.01.2017, to the extent of rejecting the petitioner's application under Order 7, Rule 14 of the Code of Civil Procedure is quashed and set aside. The application dated 04.12.2015 filed under Order 7, Rule 14 of the Code of Civil Procedure is granted. Both the Stay Applications Nos.7579/2017 and 7586/2018 also stand disposed of.