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2020 DIGILAW 914 (JHR)

Md. Safiruddin v. Anwar Ahmad @ Md. Anwar

2020-09-22

RAJESH SHANKAR

body2020
JUDGMENT : The present writ petition is taken up today through Video conferencing. 2. The present writ petition has been filed for quashing and setting aside the order dated 17th January, 2017 passed in Title Suit No. 130 of 2000 by the Court of learned Civil Judge (Senior Division)-I, Hazaribag whereby the said court has dismissed the application filed by the plaintiffs/petitioner under Order I Rule 10 and Order VI Rule 17 of the Code of Civil Procedure. 3. The plaintiffs has filed the title suit being Title Suit No.130 of 2000 for the following reliefs:- “a. That by adjudication it be declared that the sale deed no.4823 dated 28th May, 1990 be declared illegal, null and void, sham, colourable without consideration, inoperative and not binding on the plaintiffs and it be further declared that the defendants no. 3 to 7 had no saleable interest with respect to schedule ‘C’ property. b. That cost of the suit may be allowed to the plaintiffs. c. That any other relief or reliefs which the court may deem fit and proper and the plaintiffs are found entitled to may also be awarded to the plaintiffs against the defendants.” 4. An application dated 10th February, 2016 was filed on behalf of the plaintiffs seeking amendments in the plaint at the stage the case was pending for plaintiffs’ evidence. By way of amendment application the plaintiffs prayed that plaintiff nos. 4 to 7 may be added in the plaint after the name of plaintiff no.3. It was further prayed that the names of defendant nos. 8 to 14 may be deleted and names of other defendants be added as defendant nos. 8 to 21. It is also prayed that the number of sale deed i.e., 4822 be added in the plaint with respect to new defendants before the figure of sale deed no.4823. The plaintiffs also sought to add various plots in the Schedule-C of the plaint. The defendants filed rejoinder to the said application of the plaintiffs and objected the proposed amendments. The court below dismissed the said application of the plaintiffs vide impugned order dated 17th January, 2017 which gives rise to filing of the present writ petition. 5. The learned counsel for the petitioner submits that the proposed amendment for adding plaintiff nos.4 to 7 is necessary since plaintiff nos. The court below dismissed the said application of the plaintiffs vide impugned order dated 17th January, 2017 which gives rise to filing of the present writ petition. 5. The learned counsel for the petitioner submits that the proposed amendment for adding plaintiff nos.4 to 7 is necessary since plaintiff nos. 4 to 7 being legal heirs could not be made parties at the time of filing of the suit. Moreover, though the defendant nos. 8 to 14 are neither necessary nor proper party to the suit, they have been made defendants in the said suit. It is further submitted that the proposed amendments are formal in nature and the same are necessary for the proper disposal of the suit. The proposed amendments will not change the nature of the suit. It is also submitted that the petitioner will suffer irreparable loss, if the proposed amendments are not allowed. 6. Heard the learned counsel for the petitioner and perused the materials available on record. The plaintiffs filed an application under Order I Rule 10 as well as Order VI Rule 17 CPC seeking amendments in the plaint after commencement of the trial which was rejected by the court below vide impugned order dated 17th January, 2017. 7. The court below while rejecting the said application of the plaintiffs has observed as under:- “One thing is very important to mention here that one substitution application of plaintiffs was allowed vide order dated 02.09.2013 and plaintiffs were directed to enter the names of substituted defendants against deceased defendant nos.3, 4 and 11. Now in the application under consideration names of defendant nos. 8 to 14 have been prayed to be deleted and in their place new names of defendant nos. 8 to 21 have been proposed to be added. It clearly appears that the plaintiffs are trying to blow hot and cold at the same time. Present case is very old one pertaining to year 2000. Instead of taking step regarding substituted defendants, plaintiffs evidently do not appear to be formal in nature rather it may change the nature of suit. It also appears to have been filed to fill up lacunae and at the very belated stage. It cannot also be stated that these facts were not within the knowledge of plaintiffs at earlier stage nor any sufficient reason has been explained to this regard by plaintiffs in the application. It also appears to have been filed to fill up lacunae and at the very belated stage. It cannot also be stated that these facts were not within the knowledge of plaintiffs at earlier stage nor any sufficient reason has been explained to this regard by plaintiffs in the application. Considering all above facts and circumstances, I am of the opinion that present application has no merit. Hence, same is dismissed.” 8. Before entering into the merit of the present case, it would be relevant to go through the provisions of Order VI Rule 17 CPC as well as the judicial pronouncements dealing with the scope and extent of allowing any amendment application. “17. Amendment of pleadings.—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.” 9. In the case of Vidyabai & Others vs. Padmalatha & Another reported in (2009) 2 SCC 409 , the Hon’ble Supreme Court has held as under:- “10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under: “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.” It is couched in a mandatory form. The court’s jurisdiction to allow such an application is taken away unless the conditions precedent therefore are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.” 10. The court’s jurisdiction to allow such an application is taken away unless the conditions precedent therefore are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.” 10. It is a settled law that though the Court has power to allow an application for amendment at any stage of the suit which is necessary for the purpose of determining the real question of controversy between the parties, yet by way of the proviso, certain restriction has been put to the cases where amendment application is filed after commencement of the trial. Thus, the stages of the case have been divided into two parts for dealing with the amendment application; one is before the commencement of trial, wherein an application for amendment may be allowed so as to determine the real issue under controversy in the suit; and the other is after the commencement of the trial where before allowing the amendment application, the Court has to satisfy itself that the party seeking amendment has reasonably explained that in spite of due diligence, he/she could not raise the matter before the commencement of the trial. This requirement is to be mandatorily followed by the court. 11. In the present case, the petitioner has neither pleaded nor averred any explanation much less a sufficient one to meet the delay caused in filing the amendment application. Though an application for amendment can be allowed even after commencement of the trial, the petitioner has failed to explain that in spite of due diligence he could not seek amendment of the plaint before commencement of the trial. The court below, after taking into consideration the conduct of the petitioner has rejected the said application observing that the same has been filed to fill up the lacunae in the suit, which is not permissible. The court below has also observed that by way of amendment application, the plaintiffs have not sought to amend any typographical error, rather they have sought to add various plots in the Schedule of the plaint as also to implead/delete some of the plaintiffs and defendants who were left either due to negligence or by willful omission and, thus, no relief can be granted to the petitioner at such a belated stage of the trial. 12. 12. In view of the aforesaid facts and circumstance of the case, I find no infirmity in the order dated 17th January, 2017 passed by the Civil Judge(Sr. Division)-I, Hazaribag in Title Suit No. 130 of 2000. 13. The present writ petition being devoid of merit is, accordingly, dismissed.