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2019 DIGILAW 2792 (RAJ)

Amarnath Pareek v. Vimal Kumar

2019-11-05

INDERJEET SINGH

body2019
ORDER : Inderjeet Singh, J. 1. These two writ petitions have been filed by the petitioners-plaintiffs challenging two separate orders passed by the trial court dated 13.04.2015 & 14.02.2017 rejecting the applications filed by the petitioners-plaintiffs under Order 6 Rule 17 read with Section 151 CPC as well as the application under Order 7 Rule 14 CPC for seeking amendment in the plaint and also for taking certain documents on record respectively. 2. Brief facts are that the petitioners-plaintiffs filed a suit for cancellation of sale deed and mandatory injunction before the trial court against the defendants, including the subsequent purchasers of the property. During pendency of the suit proceedings, the petitioners-plaintiffs filed an application on 22.07.2013 for taking on record the order passed by the Assistant Collector, Jaipur. The said application was dismissed by the learned trial court vide order dated 13.04.2015. Thereafter also, the petitioners-plaintiffs again filed two applications under Order 6 Rule 17 CPC and Order 7 Rule 14 CPC, which were dismissed by the learned trial court vide order dated 14.02.2017. Both these orders dated 13.04.2015 and 14.02.2017 have been challenged by the petitioners-plaintiffs in these two writ petitions. 3. Counsel for the petitioners-plaintiffs submitted that the trial court has committed serious illegality in dismissing the applications filed under Order 6 Rule 17 CPC seeking amendment in the plaint since at the time of filing of the suit the petitioners-plaintiffs were not having knowledge of the fact regarding passing of the judgment in favour of the defendants-respondents by the Assistant Collector, Jaipur-I dated 16.01.1967 and on coming to know about this fact they filed the applications under Order 6 Rule 17 CPC for seeking amendment in the plaint in the light of the subsequent developments as aforesaid. Counsel further submits that the trial court was also not right in rejecting their application filed under Order 6 Rule 17 CPC for seeking amendment in the plaint in the light of the fact that the defendants sold the land in dispute to respondents No. 4 & 5 and further submits that the judgment passed by the Assistant Collector was challenged by the petitioners-plaintiffs before the Revenue Appellate Authority and the Revenue Appellate Authority allowed their appeal vide order dated 03.02.2016, therefore, the amendment in the plaint was necessary. So far as rejection of the application filed by the petitioners-plaintiff under Order 7 Rule 14 CPC is concerned, counsel submitted that the order passed by the Revenue Appellate Authority is also necessary to be taken on record to decide the controversy involved in the suit. 4. Counsel for the respondents-defendants submitted that the issues were framed in the present matter by the trial court on 07.09.2007. Counsel further submits that the order passed by the Revenue Appellate Authority has been stayed by the Board of Revenue in an appeal filed by the respondents No. 4 & 5 i.e. subsequent purchasers of the suit property who purchased the land in dispute by registered sale deed on the basis of revenue record from the respondents-defendants. Counsel further submits that the order passed by the Revenue Appellate Authority is not necessary to decide the controversy involved in the suit as in the light of the orders the amendment is being sought by the petitioners-plaintiff, the matter is pending adjudication before the Board of Revenue and the petitioners-plaintiffs want to delay the suit proceedings. Counsel further submits that the learned trial court rightly rejected the applications twice submitted by the petitioners-plaintiffs by two respective orders dated 13.04.2015 and 14.02.2017 and lastly prayed for dismissal of the writ petitions. 5. Heard counsel for the parties and perused the record. 6. The Hon'ble Supreme Court in the matter of 'Raj Kumar Bhatia Vs. Subhash Chander Bhatia' reported in (2018) 2 SCC 87 in which para 12 has held as under:- "12. This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction Under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the Appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction Under Article 227. In Sadhna Lodh v. National Insurance Co. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction Under Article 227. In Sadhna Lodh v. National Insurance Co. Ltd., this Court has held that the supervisory jurisdiction conferred on the High Court Under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction Under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement Under Order 6 Rule 17 of the Code of Civil Procedure. There was no reason for the High Court to interfere Under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the Respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21.09.2013 that an amendment of the plaint was allowed by the Trial Court, following which the Appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff." 7. It would also be necessary to note that it was on 21.09.2013 that an amendment of the plaint was allowed by the Trial Court, following which the Appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff." 7. These writ petitions filed by the petitioners-plaintiffs deserve to be dismissed for the reasons; firstly the amendment has been sought in the plaint by the petitioners-plaintiffs on the basis of the fact that the Revenue Appellate Authority has set aside the judgment and decree passed by the Assistant Collector vide order dated 03.02.2016 however, the said order has been stayed by the Board of Revenue on appeal being filed by the defendants-respondents No. 4 & 5; secondly the order passed by the Revenue Appellate Authority dated 03.02.2016 is not necessary to be taken on record because the said order has been stayed by the Board of Revenue in an appeal being filed by the defendants-respondents No. 4 & 5 and the appeal is still pending; thirdly in my considered view the trial court has rightly used its discretion while dismissing the applications filed by the petitioners-plaintiffs therefore I am not inclined to exercise the jurisdiction of this Court under Article 227 of the Constitution of India in view of the judgment passed by the Hon'ble Supreme Court in the matter of Raj Kumar Bhatia (supra) and fourthly the suit is pending before the trial court since 2005 and the applications were filed by the petitioners-plaintiffs just to delay the proceedings. 8. In that view of the matter, these writ petitions stand dismissed. However, the petitioners-plaintiffs are at liberty to raise all their legal grounds at the time of final hearing of the suit.