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2023 DIGILAW 1981 (RAJ)

Satyanarayan Sharma, S/o. Sh. Madanlal Sharma (Tiwari) v. Ratan Devi Sharma, W/o. Mahaveer Prasad Sharma

2023-10-16

NUPUR BHATI

body2023
ORDER : 1. The present writ petition has been listed in the category of ‘for admission-notice served-reply not filed’. With the consent of learned counsel for the parties, the matter is finally heard today, itself. 2. The present writ petition has been filed under Article 227 of the Constitution of India with the following prayer:- 1. allow this writ petition. 2. quash and set aside the impugned order dated 18.12.2014 (Annexure-13) to the extent it reject applications under O.6 R.17 and application under Section 151 CPC and, accordingly, the applications (Annex.9 and Annex.11) may kindly be allowed as prayed for. 3. pass any other order, which this Hon’ble Court deems fit and proper in the facts and circumstances of the case. 4. allow cost of the writ petition to the petitioner.” 3. Brief facts of the case are that the petitioner-plaintiff filed a suit for permanent injunction against the respondent No.1, 2, 3, contending that the mother of the petitioner-plaintiff is an old lady and suffering from illness and thus, is not in a mental state and physical condition to take care of the property in question and on account of the said illness of the petitioner-defendant’s mother, the brother of the petitioner plaintiff requested the petitioner plaintiff to take care of the mother at his house and executed a power of attorney dated 14.06.2016 in favour of his wife Smt. Ratan Devi-respondent-defendant No.1 for operating the bank account of petitioner-defendant’s mother. Thereafter, the petitioner-plaintiff filed a suit for permanent injunction against the respondent-defendant No.1 to 3 as the defendant No.1 and 2 in connivance with the bank authorities were bent upon to withdraw the entire amount which was deposited with the respondent-bank. The petitioner-plaintiff also preferred an application under Order 39 Rule 1 and 2 CPC seeking temporary injunction to the effect that the defendant No.1 and 2 may be restrained from withdrawing the amount and the respondent No.3-ICICI Bank may be restrained to disburse the amount in favour of the power of attorney holder. 4. The learned Court below vide order dated 28.11.2014 (Annexure 5 and 6) refused to grant ad-interim injunction in favour of the petitioner-plaintiff. The respondent defendants submitted an application under Order 7 Rule 11 CPC seeking rejection of the plaint on the ground of valuation of suit being barred by law which was rejected by the learned court below on 28.11.2014. The learned Court below vide order dated 28.11.2014 (Annexure 5 and 6) refused to grant ad-interim injunction in favour of the petitioner-plaintiff. The respondent defendants submitted an application under Order 7 Rule 11 CPC seeking rejection of the plaint on the ground of valuation of suit being barred by law which was rejected by the learned court below on 28.11.2014. The petitioner-plaintiff also preferred an application under Order 1 Rule 10 CPC for impleadment of his mother as party defendant which was duly allowed vide order dated 18.12.2014 (Annexure-13). The petitioner-plaintiff also preferred an application under Order 6 Rule 17 of CPC seeking amendment in the plaint in order to add prayer to the effect to declare the power of attorney as void-ab-initio. The said application of the petitioner-plaintiff was rejected vide order dated 18.12.2014 (Annexure-13). The petitioner being aggrieved of the impugned order dated 18.12.2014 (Annexure-13) qua the rejection of application filed under Order 6 Rule 17 CPC has preferred the present writ petition. 5. Learned counsel for the petitioner submits that the application filed under Order 6 Rule 17 CPC ought not to have been rejected as when the said application was filed the written statements to the suit had not been filed by the respondents-defendants and since the application was filed at a much earlier stage, the application ought to have been accepted. Learned counsel for the petitioner also submits that the said amendment in the suit praying for relief for declaring the power of attorney as void-ab-initio shall not change the nature of the suit as in the suit filed by the petitioner-plaintiff, a specific submission was made that the power of attorney has been fraudulently made by the respondents-defendants with the purpose to withdraw the amount from the bank account of his mother. 6. Learned counsel for the respondents vehemently opposes the submissions made and submits that in case the amendment in the suit is allowed the same would change the nature of the suit and the application has rightly been rejected. 7. Heard learned counsel for the parties and perused the material available on record. 8. Despite service, nobody puts in appearance for respondent No.1, 2, 4, 5, 6, 7 and 8. 9. It is an admitted fact that the petitioner had preferred the application under Order 6 Rule 17 CPC much before the written statements was filed by the respondents-defendants. 7. Heard learned counsel for the parties and perused the material available on record. 8. Despite service, nobody puts in appearance for respondent No.1, 2, 4, 5, 6, 7 and 8. 9. It is an admitted fact that the petitioner had preferred the application under Order 6 Rule 17 CPC much before the written statements was filed by the respondents-defendants. It is also observed that the suit was preferred by the petitioner-plaintiff with the following prayer:- ^^1- fd izfroknhx.k oknh dh ekrk pkanckbZ tks fd ekufld o 'kkjhfjd :i ls vl{ke gksdj viuh lgefr tkghj djus es Hkh vl{ke gSa ls NydiV o ?kks[kk/kMhiwoZd fu"ikfnr eqf[r;kjukekvke ds vk/kkj ij pkanckbZ ds lsfoax cSad [kkrs o ,QMhvkj es tek jkf'k dk vkgj.k uk djsa] uk gh fdlh vU; ls djkosaA 2- fd fo:) izfroknhx.k la[;k 3 oknhx.k ds i{k esa bl vej dh LFkkbZ fu"ks/kkKk ikfjr Qjekosa fd izfroknh la[;k 3 izfroknh la[;k 1 o 2 dks pkanckbZ ds mij dye la[;k 4 esa of.kZr [kkrksa esa ls jkf'k dk vkgj.k dj Hkqxrku uk djsaA 3- fd fo:) izfroknh la[;k 3 oknhx.k ds i{k esa bl vej dh LFkkbZ fu"ks/kkKk ikfjr Qjekosa fd izfroknh la[;k 3 pkanckbZ ds mDr [kkrs o ,QMhvkj esa tek jkf'k dk Hkqxrku fdlh dks Hkh djus ls iqoZ pkanckbZ dk esfMdy ijh{k.k djkus gsrq ,d esfMdy cksbZ dk xBu djkosa vkSj lgefr feyus rd oknh dh fcuk lgefr ds izfroknh la[;k 1 o 2 dks jkf'k dk Hkqxrku uk djsaA^^ 10. In the amendment application, the petitioner-plaintiff had filed the suit and the following prayers were made:- ^^lsok esa] Jheku flfoy U;k;k/kh'k egksn; iqoZ] HkhyokM+k ¼jkt0½ izdj.k la[;k 122@2014 lR;ukjk;.k 'kekZ --------izkFkhZ cuke jru nsoh 'kekZ oxSjg -----------foi{khx.k okn ckcr vUrxZr vkns'k 6 fu;e 17 lifBr /kkjk 151 tk0nh0 egksn; th] izkFkhZ dh vksj ls fuEufyf[kr izkFkZuki= izLrqr fd;k tk jgk gS%& 1- ;g gS fd mDr ekeys esa NydiV] /kks[kk/kM+h dj QthZ eqf[r;kjukekvke foi{kh egkohj izlkn o jrunsoh }kjk pkanckbZ ls vaxqBk fu'kkuh djokdj QthZ rksj ij fu"ikfnr dj o uksVsjh ifCyd djok fn;k tks fd voS/k gksdj 'kwU; izHkkoh gSA 2- ;g gS fd mDr ekeys esa mDr QthZ eqf[r;kjukekvke ds vk/kkj ij jkf'k 8]17]057@& :i;s fudkydj gM+iuk pkgrk gS tcfd pkanckbZ eqf[r;kjukekvke fu"ikfnr djus esa vl{ke Fkh o mldh lgefr Hkh ugha Fkh rFkk mlus fdlh izdkj dk eqf[r;kjukekvke fu"ikfnr ugha fd;k gS D;ksafd mldks i{kk?kkr gqvk gSA lkspus le>us dh 'kfDr Hkh ugha gS pyus fQjus esa l{ke ugha gS bl laca/k esa vkbZlhvkbZlhvkbZ cSad ds vf/kdkfj;ksa }kjk Hkh tkap dh xbZ gSA ftlls ;g fu"d"kZ fudkyk x;k fd pkanckbZ dh lkspus le>us dh 'kfDr ugha gS rFkk eqf[r;kjukekvke fdlh izdkj ls pkanckbZ dh lgefr ls fu"ikfnr ugha gqvk gSA 3- ;g fd mDr ekeys esa fopkj.k vHkh izkjfEHkd rkSj ij gS o tokcnkok Hkh ugha vk;k gS izkFkhZ fuEufyf[kr izdkj ls nkos o izkFkZuki= esa la'kks/ku djokuk pkgrk gSA 1& ;g fd nkos dh dye la[;k 6 ds ckn 6¼v½ dh eqf[r;kjukekvke xyr vlR; euedlwn gksdj QthZ gS rFkk voS/k gks ceqdkcys izkFkhZ 'kwU; izHkkoh gSA 2& fd okni= ds vuqrks"k esa dye la[;k 3 ds ckn 3v dh foi{khx.k }kjk NydiV o /kks[kk/kM+h dj pkanckbZ ls fcuk mldh lgefr fcuk lkspus le>us dh 'kfDr gksrs gq, QthZ vaxqBk fu'kkuh yxkdj QthZ eqf[r;kjukekvke foi{kh jrunsoh o egkohj izlkn 'kekZ }kjk vius i{k esa fu"ikfnr djk;k gS o voS/k o 'kwU; izHkkoh gksus ls voS/k o 'kwU; izHkkoh gksus dk vkns'k ikfjr QjekosaA vr% Jheku ls fuosnu gS fd mDr ekeys esa mDr eqf[r;kjukekvke tks fcuk pkanckbZ dh lgefr ds vpsru voLFkk esa vaxqBk fu'kkuh foi{kh egkohj izlkj o jru nsoh ds i{k esa djokbZ xbZ gS bl dkj.k ls okni= esa dye la[;k 6 esa la'kks/ku dj 6v dks la;ksftr fd;k tkosa vkSj vuqrks"k dh dye la[;k 3 esa 3v la;ksftr fd;s tkus dk vkns'k ikfjr Qjekosa o mDr eqf[r;kjukekvke dks voS/k o 'kwU; izHkkoh gksus ls voS/k o 'kwU; izHkkoh gksus dk vkns'k ikfjr QjekosaA^^ Thus, when a specific averment has been taken in the suit that the power of attorney has fraudulently been made by the respondents-defendants in order to withdraw the money from the bank account then the amendment in the prayer praying for declaring the power of attorney as void-ab-initio would not change the nature of the suit. Further under Order 6 Rule 17 of CPC the Courts have power to allow the parties to modify or alter their pleadings at any stage of proceedings and in the present case, the stage of the suit is not an advance stage as the respondents-defendants have not filed the written statement of the plaint. Order VI Rule 17 of CPC is reproduced as under :- “Order VI PLEADINGS GENERALLY 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.” 11. This Court is conscious of the fact that as long as the distinctness and the course of the original relief asked for in the earlier pleading is maintained and an attempt is made only to make an inread into the form of the relief asked for, it is permissible to allow an amendment of such pleading, but in cases where, under the guise of an amendment, a distinct and separate prayer is sought to be introduced in the pleading, it would not be an amendment at all, but it would be the setting of a new case, not thought of and not even pleaded by the person concerned and in the present case, the petitioner has specifically pleaded in the earlier suit that the power of attorney has been fraudulently executed and by way of an amendment, the petitioner seeks to amend his prayer for declaring the said power of attorney void-ab-initio thus, in no manner the nature of the suit would be changed upon amendment under Order 6 Rule 17 of CPC. 12. In view of the aforesaid observation, the writ petition is allowed and the impugned order dated 18.12.2014 (Annexure-13) passed by learned Civil Judge (East), Bhilwara is quashed and set aside to the extent of rejecting the application filed under Order 6 Rule 17 of CPC. 13. Stay petition and all pending applications, if any, stand disposed of. 14. 12. In view of the aforesaid observation, the writ petition is allowed and the impugned order dated 18.12.2014 (Annexure-13) passed by learned Civil Judge (East), Bhilwara is quashed and set aside to the extent of rejecting the application filed under Order 6 Rule 17 of CPC. 13. Stay petition and all pending applications, if any, stand disposed of. 14. Learned court below is directed to take on record the application filed by the petitioner-plaintiff under Order 6 Rule 17 of CPC and the petitioner-plaintiff is directed to make the necessary amendments in the suit as mentioned in the application filed under Order 6 Rule 17 CPC.