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2023 DIGILAW 356 (RAJ)

Tariq S/o Shri Mohd. Muneer Khan v. Dayal Singh S/o Shri Jeevan Singh

2023-02-01

SAMEER JAIN

body2023
JUDGMENT : 1. The present writ petition is filed against the impugned order dated 16.02.2008 passed by Civil Judge, Junior Division (East), Jaipur City, Jaipur wherein the application for amendment of plaint under Order 6 Rule 17 read with Order 1 Rule 10 of the Code of Civil Procedure, filed by the respondent-plaintiff in Civil Suit No. 528/1994 was allowed. 2. Learned counsel for the petitioner-defendant has submitted that the respondent-plaintiff Dayal Singh had filed a civil suit against the petitioner-defendant for permanent injunction in 1992 wherein the petitioner-defendant had filed his written statement and had categorically denied all the averments made in the plaint by the respondent-plaintiff. Moreover, along with the said plaint, the respondent-plaintiff had also moved an application for temporary injunction against the petitioner-defendant. However, vide order dated 04.05.2007, the said application was dismissed by the learned Trial Court. Thereafter, the respondent-plaintiff filed an application under Order 6 Rule 17 read with Order 1 Rule 10 of the Code of Civil Procedure for the amendment of his plaint with a prayer that the petitioner-defendants be directed to deliver possession over the land in dispute and the construction therein be restored. Subsequently, vide impugned order dated 16.02.2008, the application filed by the respondent-plaintiff for amendment of the suit and for impleading the Civil Lines Housing Cooperative Society Ltd. as defendant No.2 was allowed; against which the present writ petition is filed by the petitioner-defendant. 3. Furthermore, learned counsel for the petitioner-defendant submitted that by allowing the application for amendment of suit and for impleading the society as defendant No.2, the learned Court below has erred in law and has passed the order in excess of the jurisdiction conferred upon it by Order 6 Rule 17 of the Code of Civil Procedure. In this regard, it was submitted that vide order dated 04.05.2007, it was categorically held by the learned trial court that the respondent-plaintiff did not have possession over the land in question. Moreover, no allotment letters qua the said piece of land were filed in support of the amendment application/suit by the respondent-plaintiff. Additionally, despite the fact that the respondent-plaintiffs alleged removal of construction on the said piece of land, they did not implead Jaipur Development Authority (JDA) as a party to the suit. Learned counsel further submitted that the suit was originally filed for permanent injunction. Additionally, despite the fact that the respondent-plaintiffs alleged removal of construction on the said piece of land, they did not implead Jaipur Development Authority (JDA) as a party to the suit. Learned counsel further submitted that the suit was originally filed for permanent injunction. However, by way of the said application, the respondent-plaintiff tried to alter the same by making it into a suit for possession. Therefore, it was prayed that by allowing the said application at this stage, the learned Civil Judge had acted in excess of its jurisdiction. In support of his contentions, learned counsel for the petitioner-defendant placed reliance upon the dictum of the Apex Court judgment in (2008) 4 SCC 594 titled as Anathula Sudhakar vs. P. Buchi Reddy and Ors. 4. Per contra, learned counsel for the respondent-plaintiff has submitted that the impugned order passed by the learned trial court does not call for any interference of this Court as the same has been passed in consonance with the settled principles of law and therefore, it cannot be said to be perverse or illegal per se. Learned counsel has submitted that the petitioner-defendant is an influential man and being a RAS Officer, he has unlawfully used his influence to fabricate the revenue records. Furthermore, it was submitted that the respondent-plaintiff has categorically reflected his legal possession over the land in dispute since the filing of the suit in 1992. Moreover, learned counsel further argued that vide order dated 04.05.2007, whereby the temporary injunction application filed by the respondent-plaintiff was dismissed, the discussion pertained to the legal possession of the property and not its physical possession. It was further submitted that the respondent-plaintiff filed the amendment application on 05.09.2007; only after the petitioner-defendant forcefully took possession of the disputed property, which was in the possession of the respondent-plaintiff until the year 2007. In this background, learned counsel submitted that the amendment was necessitated during the pendency of the suit as during the said period, the respondent-plaintiff was dispossessed of the property in question. 5. In light of the submissions made herein-above, it was submitted that no palpable error of law has crept in the impugned order and the learned trial court after duly considering the material aspects of the case, has arrived at a logical conclusion. 5. In light of the submissions made herein-above, it was submitted that no palpable error of law has crept in the impugned order and the learned trial court after duly considering the material aspects of the case, has arrived at a logical conclusion. Therefore, it was urged that as the impugned order does not cause any prejudice to the petitioner; the same does not warrant interference of this Court under Article 227 of the Constitution of India. In support of his contentions, learned counsel has relied upon the judgment of the Apex Court in Sampath Kumar vs. Ayyakannu and Anr. reported in AIR 2002 SC 3369 . 6. Considered the submissions advanced by the learned counsel for both the sides, scanned the record of the case and perused the judgment(s) cited at Bar. 7. It is observed that vide impugned order dated 16.02.2008, the trial court had categorically held that if the amendment application filed under Order 6 Rule 17 read with Order 1 Rule 10 of the Code of Civil Procedure, filed by the respondent-plaintiff is allowed, then the basic structure of the suit shall not stand altered i.e. the nature of the suit would remain the same. Furthermore, vide order dated 04.05.2007, the learned trial court had made a reference towards the legal possession of the property in dispute and not its physical possession per se. Moreover, in the original suit filed by the respondent-plaintiff, he had categorically supported his possession over the property in dispute by way of electricity bills etc. Furthermore, in order to reflect his possession over the said property in dispute, he has also placed reliance upon the stay order passed by the Jaipur Development Authority on 10.06.1992. 8. Therefore, in the facts of the present matter, as the amendment was necessitated during the pendency of the suit on account of dispossession of the disputed property qua the respondent-plaintiff, the learned trial court while exercising its discretion vide impugned order dated 16.02.2008, has rightly allowed the application for amendment of the plaint. Furthermore, the dictum of the Apex Court judgment in Sampath Kumar (Supra) is squarely applicable on the facts of the present matter. Furthermore, the dictum of the Apex Court judgment in Sampath Kumar (Supra) is squarely applicable on the facts of the present matter. In the said judgment, it was held that Order 6 Rule 17 of the Code of Civil Procedure confers jurisdiction on the Court to allow either party to alter or amend their pleadings at any stage of the proceedings and on such terms as it may deem just. It was further observed that amendments, which are sought to determine the real question in controversy between the parties, should be permitted to be made. Therefore, in the facts of the present matter, as the amendment was necessitated during the pendency of the suit, the learned trial court while exercising its discretion vide impugned order dated 16.02.2008, has rightly allowed the application for amendment of the plaint. At this juncture, it is also important to note that the observations arrived at by the learned trial court while dismissing the application for temporary injunction vide order dated 04.05.2007, are not binding while deciding the application seeking amendment in the plaint. 9. It is pertinent to note that during the course of arguments, learned counsel for the petitioner did not object to the impleadment of Civil Lines Housing Cooperative Society Ltd as defendant No.2. Therefore, this Court has not adjudicated upon the said issue qua their impleadment. 10. Hence, considering the observations made herein-above and while exercising its jurisdiction under Article 227 of the Constitution of India, this Court is not inclined to interfere with the impugned order dated 16.02.2008. 11. Accordingly, the writ petition is dismissed. Pending applications, if any, stand disposed of.