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2026 DIGILAW 21 (RAJ)

Karmchand, S/o Sh. Nathu Singh v. Darshan Singh, S/o Bhag Singh

2026-01-14

SANJEET PUROHIT

body2026
ORDER : SANJEET PUROHIT, J. 1. The present writ petition has been filed challenging the validity and propriety of the order dated 28.08.2019 passed by learned Sr. Civil Judge, Sri Karanpur, District Sri Ganganagar (learned trial Court) rejecting the application filed by the petitioner–plaintiff under Order 6 Rule 17 CPC seeking amendment in the plaint. 2. The facts germane to the present writ petition are that:- 2.1 The petitioner-plaintiff has preferred a suit for specific performance of agreement to sell said to be executed by defendant No.1-Darshan Singh on 31.12.1986 agreeing to sell his share in the land in question. Learned trial court while proceeding ex-parte against the respondent defendant, vide judgment and decreed dated 21.07.2009 partly allowed the suit and passed money decree in favour of the petitioner-plaintiff, while denying relief of specific performance of the agreement dated 31.12.1986. 2.2. Said judgment dated 21.07.2009 and decree dated 01.08.2009 was challenged by the petitioner-plaintiff in regular first appeal. On the other hand, defendant after coming to know about passing of ex-parte decree dated 01.08.2009, preferred an application under Order 9 Rule 13 CPC which was allowed by the learned trial court vide order dated 01.03.2016 and the ex-parte judgment dated 21.07.2009 and decree dated 01.08.2009 were set aside. By virtue of the said order, the suit proceedings got revived. 2.3. Since the suit proceedings got revived, the petitioner- plaintiff has withdrawn his first appeal and the same was accordingly dismissed. 2.4. After the suit proceedings got revived by order dated 01.03.2016, the petitioner plaintiff preferred an application dated 30.04.2016 (Annexure-4) under Order 6 Rule 17 CPC and sought to introduce the amendment with regard to judgment and decree of partition dated 04.09.2000 passed in a revenue suit so also regarding the sale deed dated 05.07.2012 (24.07.2012) by which the respondent-defendant Nos. 3 to 5 have sold the land in question to respondent No.6, during the period the suit proceedings were not in currency. It is stated that the partition decree as well as the subsequent sale deed are affecting the rights of the petitioner, hence by way of amendment, prayer was sought to be added for declaring the partition decree as well as subsequent sale deed dated 05.07.2012 as null and void qua the rights of the plaintiff. It is stated that the partition decree as well as the subsequent sale deed are affecting the rights of the petitioner, hence by way of amendment, prayer was sought to be added for declaring the partition decree as well as subsequent sale deed dated 05.07.2012 as null and void qua the rights of the plaintiff. The said application was contested by the respondent- defendant on the ground that the same is delayed one and same has been filed without any due diligence. It is contended that amendment sought in the plaint would change the nature of the suit. 2.5 Learned trial court vide order dated 28.08.2019 has rejected the application preferred by the plaintiff-petitioner under Order 6 Rule 17 CPC and refused to take the amendment on record. Challenging the said order, the present writ petition is filed. 3. While arguing on behalf of petitioner, counsel stated that order impugned is absolutely erroneous and unjustified. Learned trial Court has rejected the application merely on the ground of delay in filing the application without considering the relevance and importance of the amendment sought to be introduced in the plaint. 3.1 Counsel for petitioner argued that subsequent sale has taken place during the period when the suit was decreed and the same was restored by allowing the application under Order 9 Rule 13 CPC, hence the amendment sought cannot be said to be belated and without due diligence. 3.2 Learned counsel for the petitioner stated that the subsequent purchaser has already been impleaded as party respondents in the suit, holding her as necessary and proper party to the suit proceedings. Thus, there was no justification to deny the amendment with regard to the subsequent sale. 3.3 Learned counsel for petitioner further contended that suit for partition has been decided with collusion and therefore, the effect of said judgment relating to the partition is also relevant for proper and complete adjudication of the suit proceedings. On the strength of the aforesaid arguments, counsel for the petitioner prayed for allowing the writ petition and quashing of impugned order dated 28.08.2019. 4. Per contra, counsel for the respondent argued that application for amendment has been filed at highly belated stage and without observing due diligence, therefore the same was rightly rejected by the learned trial Court on 28.08.2019. 4.1. 4. Per contra, counsel for the respondent argued that application for amendment has been filed at highly belated stage and without observing due diligence, therefore the same was rightly rejected by the learned trial Court on 28.08.2019. 4.1. Counsel for the respondent further stated that amendment regarding judgment and decree dated 01.08.2009 passed by revenue Court is absolutely irrelevant and the prayer for declaring the same void cannot be introduced in the present suit as the same can be subject matter of appeal/revision before revenue courts. 4.2 Counsel for the respondent also submitted that mere impleadment of subsequent purchaser, by itself, cannot, be a ground for permitting amendment regarding the subsequent sale in the present suit seeking specific performance of the agreement to sell dated 31.12.1986. Accordingly, counsel for the respondent prayed for dismissal of the present writ petition. 5. Heard counsel for the parties and perused the material available on record. 6. The undisputed chronology of the present case shows that the suit for specific performance was partly and ex-parte allowed vide judgment dated 01.08.2009 holding the petitioner-plaintiff entitled only for the amount of consideration paid in pursuance of agreement to sale dated 31.12.1986. The said judgment dated 21.07.2009 and decree dated 01.08.2009 were set aside by learned trial Court by allowing application under Order 9 Rule 13 CPC vide order dated 01.03.2016. Thus, the suit proceedings were not in currency in between 01.08.2009 uptill 01.03.2016. After the order dated 01.03.2016, the suit proceedings restored and immediately thereafter, the application under Order 6 Rule 17 was filed on 30.04.2016, whereby the amendment with regard to (i) the partition decree dated 04.09.2000 passed by the revenue Court as well as (ii) sale deed dated 05.07.2012 (24.07.2012), were sought to be introduced in the plaint. 6.1. So far as proposed amendment relating to judgment and decree dated 04.09.2000 passed in a revenue suit is concerned, this Court finds that during the earlier round of suit proceedings, which were remained pending up to 01.08.2009, no effort was made by the petitioner–plaintiff to bring the same on record. Apart from this, the validity of the judgment and decree dated 04.09.2000 passed in a revenue suit is a subject matter of the appellate/revisional jurisdiction as per the revenue laws. Apart from this, the validity of the judgment and decree dated 04.09.2000 passed in a revenue suit is a subject matter of the appellate/revisional jurisdiction as per the revenue laws. The application preferred by petitioner-plaintiff under Order 6 Rule 17 CPC is bereft of any justification regarding the delay in seeking introduction of the said fact in the plaint. The plaintiff has also not disclosed as what remedies have been taken by the plaintiff against the said decree of partition under the revenue jurisdiction. This Court concurs with the observaation of the learned trial Court that such amendment would amount to change the nature of the suit originally filed for seeking decree of specific performance against respondent No.1. The amendment sought to be introduced in relation to the said partition decree is neither relevant nor bona fide and the same has been sought to be introduced at a belated stage without providing any justifiable explanation for delay. Therefore, this court is inclined to accept the finding recorded by the learned trial Court to that extent. 6.2. So far as the proposed amendment regarding subsequent sale dated 05.07.2012 is concerned, this Court finds that suit property was sold in the year 2012, which occurred during the period when the suit proceedings were not pending. Learned trial Court has refused the amendment in that regard while observing that amendment application has been filed at a belated stage whereas, the fact remains that the sale in question occurred at a subsequent stage, i.e., after the ex-parte decree was passed vide judgment dated 01.08.2009 and before the ex-parte decree was set aside vide order dated 01.03.2016. It is also undisputed that after restoration of suit proceedings, immediately application seeking amendment was filed. Thus, no delay is caused by the plaintiff in moving the application for amendment after the restoration of the suit proceedings. 6.3. Counsel for the respondent has objected that due diligence was not observed by the petitioner–plaintiff; however, the undisputed chronology of the present case shows that the factum of sale is a subsequent event taken place during the period when the suit proceedings were not pending and immediately after restoration of the suit proceedings, application for proposed amendment was filed. This aspect, however, was not taken into account by the learned Trial Court. 6.4. This aspect, however, was not taken into account by the learned Trial Court. 6.4. It is also an admitted fact that subsequent purchaser, Vimla Devi, has already been impleaded as defendant No.6, holding her to be a necessary party to the suit proceedings. Although the counsel for the respondent has submitted that the fact of the subsequent sale is not relevant and that mere impleadment of the subsequent purchaser is not sufficient to allow the amendment in that regard. However, this Court finds that the alleged agreement to sell was executed by defendant No.1, whereas the sale in favour of defendant No.6 was made by other defendants. Therefore, the averment regarding the sale of land in question and its effect over the rights of the petitioner-plaintiff is very much relevant. Learned trial Court committed an error in not considering the fact that such amendment is necessary for proper and adjudication of the controversy involved in the suit filed by the plaintiff. 7. Counsel for the respondent has further submitted that, in view of the proviso to Order 6 Rule 17 CPC, an amendment cannot be permitted after the commencement of trial unless due diligence on the part of the applicant is shown. In view of the observations made above, this Court is of the clear opinion that the amendment relating to the subsequent sale effected in 2012 has been sought to be introduced without any delay and immediately after the restoration of the suit proceedings. Thus, it cannot be said that there was an absence of due diligence or any gross delay. Even otherwise, when the fact of the subsequent sale is relevant for the complete adjudication of the controversy involved in the suit, the same was wrongly denied by the learned Trial Court. After restoration, the suit proceedings are still at initial stage and no prejudice would be caused to the respondent. 8. The views expressed above also finds support from the judgment passed by Hon’ble the Supreme Court in LIC v. Sanjeev Builders (P) Ltd., (2022) 16 SCC 1 wherein the Hon’ble Supreme Court has held that Courts while deciding applications under Order VI Rule 17 should apply a liberal approach. The relevant paragraphs are reproduced herein below: “71.5. 8. The views expressed above also finds support from the judgment passed by Hon’ble the Supreme Court in LIC v. Sanjeev Builders (P) Ltd., (2022) 16 SCC 1 wherein the Hon’ble Supreme Court has held that Courts while deciding applications under Order VI Rule 17 should apply a liberal approach. The relevant paragraphs are reproduced herein below: “71.5. In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. 71.6. Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. 71.7.Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after expiry of limitation. 71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. 71.9. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. 71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. 71.11.Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v.Gagninder Kr. Gandhi [Vijay Guptav.Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897] .)” 9. The Hon’ble Apex Court in Ganesh Prasad v. Rajeshwar Prasad , 2023 SCC OnLine SC 256 clarified that amendments under Order 6 Rule 17 can introduce alternative pleas, even inconsistent ones, if they aid in resolving the dispute without prejudicing the defendant. The relevant paragraph is reproduced herein below: “47. In the event, if the pleas sought to be introduced by plaintiff by way of an amendment is also the plea, which the defendant has set up in his written statement and such a plea of the plaintiff is an alternative plea, even though it is inconsistent with the original plea, since there is no prejudice caused to the defendant, the Court is not precluded from allowing the amendment.” 10. Also, the Hon’ble Apex Court in Dinesh Goyal v. Suman Agarwal (Bindal), 2024 SCC OnLine SC 2615 reinforced that Order 6 Rule 17 permits amendments to introduce fundamental aspects for issue determination, even late, absent bad faith. The relevant paragraphs are reproduced herein below: “11.1 The settled rule is that the Courts should adopt a liberal approach in granting leave to amend pleadings, however, the same cannot be in contravention of the statutory boundaries placed on such power. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das it was held as under: “16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v.Kalgonda Shidgonda Patil [ AIR 1957 SC 363 ] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions : (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. [Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166 .]” 17. Any and all delays in judicial processes should be avoided and minimised to the largest extent possible, and should generally be, and are rightly frowned upon. However, not in all cases can delay determine the fate of a Suit. The defendant submits that the time gap between submitting the written statement to the Suit and the presentation of the application seeking leave to amend is unexplained. If this argument of the defendant is accepted, the question of Will shall remain undecided or at best will be decided with great delay. The trial which has admittedly already commenced, would be stalled by way of a challenge to the framing of issues which, in turn, would not be in consonance with the object of Order VI Rule 17 of CPC which is aimed at preventing multiplicity or multiple avenues of litigation, subsumed under the umbrella of one dispute.” 11. In view of the observations made above, the present writ petition is partly allowed. The order impugned dated 28.08.2019 to the extent of rejection of the amendment application relating to the facts/prayer regarding subsequent sale dated 05.07.2012, is quashed and set aside. Learned trial Court is directed to allow the amendments regarding sale deed dated 05.07.2012, mentioned in the application filed under Order 6 Rule 17 (Annexure-4) on record and proceed with the trial in accordance with law. 12. The suit in question was filed in the year 1999 and the suit proceedings were stayed by interim order dated 14.10.2019 passed by this Court, thus, the learned trial Court is directed to adjudicate and decide the suit proceedings as expeditiously as possible, without granting unnecessary/causal adjournments to either of the parties. 13. Stay petition and pending applications, if any, also stand disposed of.