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2020 DIGILAW 22 (HP)

Gulzar Singh v. Bhajan Singh

2020-01-01

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, the petitioners/defendants have assailed order dated 26.09.2018, passed by the Court of learned Senior Civil Judge, Court No. I, Amb in CMA No. 40/VI/2018 (Reg. No. 117/18), Civil Suit No. 169/I/2007, titled as Bhajan Singh Vs. Gulzar Singh and others, vide which, an application filed under Order 6 Rule 17 of the Code of Civil Procedure by the respondent/plaintiff stands allowed by the learned Trial Court. 2. Brief facts necessary for the adjudication of present petition are that a suit for injunction is pending adjudication before the learned Trial Court, which has been filed by the respondent/plaintiff against the petitioners/defendants. This suit was filed in the month of October, 2007. When the Civil Suit was at the stage of hearing, an application was filed by the plaintiff before the learned Trial Court under Order VI, Rule 17 of the Code of Civil Procedure for amendment of the plaint, inter alia, on the ground that defendants had preferred an appeal against the order dated 28.02.2000, passed by the Land Reforms Officer before the Divisional Commissioner, Kangra at Dharamshala, which was pending adjudication. This fact was realized by the plaintiff when the case was being prepared for the purpose of arguments and the amendment sought for could not be incorporated in the plaint earlier erroneously and due to due to over sight. On these counts prayer was made for permission to amend the plaint in the following terms: “(i) That the applicant wants to add the following words “till the final decision of revenue authorities” after the word “HP” and before the word “Under Section” in the sub para (b) of the head note of the plaint as well as in prayer clause. (ii) That the applicant further wants to delete the words “do so till final partition of land detailed in para (a) of the head note of the plaint in the end of para No. 4 of the plaint by adding words “take forcible possession of land as described in sub para (b) of the head note of the plaint till the decision of revenue authorities against the appeal preferred by the defendants.” 3. This application stands allowed by the learned Trial Court vide impugned order by assigning reasons that the amendment would facilitate the adjudication of the suit and further the nature of the suit would not be changed in case the amendment was permitted to be incorporated. 4. Feeling aggrieved, the petitioners/defendants have filed this petition. 5. I have heard learned counsel for the parties and have also gone through the impugned order as well as other documents appended with the petition. 6. Order VI, Rule 17 of the Code of Civil Procedure provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties, provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 7. A bare perusal of said statutory provision makes it amply clear that the Court can permit a party to amend the pleadings only if it comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 8. Coming to the facts of the present case, the impugned order demonstrates that in the application which was filed under Order VI, Rule 17 of the Code of Civil Procedure by the plaintiff seeking permission to amend the plaint, it stood admitted by the plaintiff that the proposed amendment could not be incorporated earlier in the plaint erroneously and due to over sight. Record further demonstrates that it was not the case of the plaintiff before the learned Trial Court that the amendments which it intended to incorporate in the plaint, were with regard to the events which had happened subsequent to the filing of the plaint or near to the time when the application was filed under Order VI, Rule 17 of the Code for amendment of the plaint. This demonstrates that the application filed under Order VI, Rule 17 of the Code was nothing but an attempt to fill up the lacunae in the case. This demonstrates that the application filed under Order VI, Rule 17 of the Code was nothing but an attempt to fill up the lacunae in the case. This is not the spirit of Order VI, Rule 17 of the Code of Civil Procedure, because a party cannot be permitted to fill up the lacunae by resorting to the provisions of Order VI, Rule 17 of the Code of Civil Procedure. This extremely important aspect of the matter has been ignored by the learned Trial Court while passing the impugned order and by permitting the plaintiff to amend the plaint. 9. There is another aspect of the matter, which needs to be dwelled at this stage. A perusal of the order passed by the learned Trial Court demonstrates that what weighed with it was the fact that there was an appeal pending before the Divisional Commissioner between the parties and adjudication thereof would have had assisted the decision of the Civil Suit. Thus, it would have been more prudent for the learned Trial Court to have had directed the parties to make a request before the learned Divisional Commissioner for early hearing of the appeal pending before the said authority, rather than allowing a belated attempt made by the plaintiff to fill up the lacunae in the Civil Suit. Therefore, the impugned order is not sustainable in the eyes of law. 10. Accordingly, the petition is allowed. Order dated 26.09.2018, passed by the Court of learned Senior Civil Judge, Court No. I, Amb in CMA No. 40/VI/2018 (Reg. No. 117/18), Civil Suit No. 169/I/2007, titled as Bhajan Singh Vs. Gulzar Singh and others, vide which, it permitted the respondent herein to amend the plaint, is set aside. 11. At this stage, learned counsel for the parties jointly submit that this Court may issue a direction to the Divisional Commissioner, Kangra at Dharamshala to decide the appeal, which has been filed by the petitioners, at the earliest and learned Trial Court be directed not to hear the suit till the decision of the appeal in issue. 12. 11. At this stage, learned counsel for the parties jointly submit that this Court may issue a direction to the Divisional Commissioner, Kangra at Dharamshala to decide the appeal, which has been filed by the petitioners, at the earliest and learned Trial Court be directed not to hear the suit till the decision of the appeal in issue. 12. In view of the submission so made by learned counsel for the parties, it is directed that the appeal pending before the learned Divisional Commissioner, Kangra at Dharamshala shall be decided by the said Authority positively on or before 31st March, 2020 (if not already decided) and learned Trial Court shall decide the suit after the decision of the appeal by the learned Divisional Commissioner. Parties shall independently file applications before the learned Divisional Commissioner bringing into the notice of the said authority the order which has been passed today, so that appropriate date can be fixed by the learned Commissioner for adjudication of the appeal. It is made clear that the time which has been granted by this Court to the learned Divisional Commissioner for deciding the appeal is sacrosanct and no extension etc. with regard to the same shall be granted, keeping in view the fact that the appeal was filed as far back as in the year 2000. Petition stands disposed of in above terms, so also pending miscellaneous applications, if any.