Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 807 (RAJ)

Ram Kishore Gupta v. Nemi Chand Doliya

2021-04-06

CHANDRA KUMAR SONGARA

body2021
ORDER 1. Instant writ petition has been filed by the petitioner challenging the impugned orders dated 14.12.2017 passed by the Court of Civil Judge cum Judicial Magistrate, Chomu District Jaipur, whereby the applications filed by the plaintiff-petitioner under Order 6 Rule 17 of C.P.C. seeking an amendment in the plaint as also in application for T.I. to amend the pleadings and to correct the size of suit property, had been dismissed. 2. Facts of the present case, in nut-shell, are that the plaintiff-petitioner had instituted a civil suit for permanent and mandatory injunction, alongwith application for temporary injunction. The plaintiff-petitioner filed applications under Order 6 Rule 17 read with Section 151 of C.P.C. in civil suit to amend the plaint as also in T.I. Application to correct size of the plot, which came to be rejected vide impugned orders dated 14.12.2017. Hence, this writ petition before this Court. 3. Learned counsel appearing for the plaintiff-petitioner has submitted that the learned trial Court has committed illegality in dismissing both the applications filed by the plaintiff-petitioner. Counsel has further submitted that the plaintiff-petitioner had filed an application under Order 6 Rule 17 of C.P.C. on the basis of copy of the sale-deed dated 12.03.1970, which was not made available to him at the time of filing of the plaint i.e. on 13.04.2015. However, the same was received by him on 25.05.2015. So, thereafter, in the rejoinder filed on 28.05.2015, a reference of the sale-deed has also been given. Counsel has also submitted that the plaintiff-petitioner has filed the present suit, asserting his title by making an averment that the suit property was purchased by his father, namely Late Shri Gyarsi Lal. The date of sale-deed, through which father purchased the suit property, was not given in the plaint. However, as soon as the plaintiff-petitioner got the copy of the sale-deed dated 12.03.1970, prior to filing of the rejoinder, the plaintiff-petitioner had mentioned about his father's sale-deed dated 12.03.1970 in the rejoinder dated 28.05.2015, which was taken on record vide order dated 03.02.2016. 4. Counsel appearing for the petitioner has contended that in case, the plaintiff-petitioner is permitted to add the reference of the sale-deed dated 12.03.1970 in the plaint, there would be no change in the basic nature of the suit, as plaintiff-petitioner has already averred in the plaint that the suit property was purchased by his father through a registered sale-deed. 4. Counsel appearing for the petitioner has contended that in case, the plaintiff-petitioner is permitted to add the reference of the sale-deed dated 12.03.1970 in the plaint, there would be no change in the basic nature of the suit, as plaintiff-petitioner has already averred in the plaint that the suit property was purchased by his father through a registered sale-deed. Counsel has further contended that so far as prayer for amendment in the plaint as well as application for temporary injunction, in relation to the correction of size of the suit property is concerned, at the time of filing of the plaint, copy of sale-deed dated12.03.1970 was not made available to the plaintiff-petitioner. When copy of sale-deed dated 12.03.1970 received to the plaintiff, he came to know about the actual size of the said property. Therefore, correction in the measurement of the suit property is necessary and is required to be made. Counsel has also contended that the plaintiff's evidence has not yet started, and the proposed amendment in the plaint just to correct the measurement of the suit property, can be allowed, which will cause no prejudice to the defendants-respondents. Lastly, counsel has prayed that the impugned orders dated 14.12.2017 in Civil Suit and T.I. Application may kindly be set aside and both the applications of the plaintiff-petitioner seeking an amendment in the plaint and in application for T.I. to amend the pleadings and to correct the size of the suit property, be allowed. 5. During the course of arguments, learned counsel appearing for the plaintiff-petitioner, has placed reliance upon the case of Surender Kumar Sharma Vs. Makhan Singh, reported in (2009) 10 S.C.C. 626 and in the case of Sajjan Kumar Vs. Ram Kishan, reported in (2005) 13 S.C.C. 89 . 6. Per contra, learned counsel appearing for the defendants-respondents, has opposed the submissions made by learned counsel appearing for the plaintiff-petitioner and submitted that the proposed amendment would cause change in the basic nature of the suit and cause prejudice to the defendants-respondents, hence, the writ petition is liable to be dismissed. 7. Heard learned counsel appearing for the parties and perused the impugned order as also the material made available on record. 8. 7. Heard learned counsel appearing for the parties and perused the impugned order as also the material made available on record. 8. Plaintiff-petitioner had instituted the present suit, asserting his title by making an averment that the suit property was purchased by his father, namely late Shri Gyarsi Lal and the date of sale-deed was not given in the plaint. 9. Indisputably, in the present case, the plaintiff averred that he has received copy of the sale-deed on 25.05.2015 and in this regard an application has been filed on 21.12.2016 till then issues were framed in the main suit. 10. So far as proposed amendment of correctness of size of the suit property is concerned, it would change the basic nature and character of the suit of the plaintiff and it would cause prejudice to the defendants-respondents. 11. Judgments relied upon by the learned counsel appearing for the plaintiff-petitioner in the case of Surender Kumar Sharma (supra) and in the case of Sajjan Kumar (supra) fail to advance the case of the plaintiff-petitioner, as they are based on different facts. 12. In view of above, this Court finds that the impugned orders dated 14.12.2017 do not suffer from any illegality or perversity. Hence, the present writ petition, being devoid of any force, is hereby dismissed. 13. Pending applications, if any, also stand disposed of.