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2020 Supreme(Raj) 456
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
PRAKASH GUPTA, J.
Gopal Swami S/o Late Shri Mohan Das Ji – Appellant
Versus
Thakur Ji Shri Sita Ram Ji – Respondent
S.B. Civil Writ Petition No. 27444 of 2018
Decided on : 30-05-2020
Advocate Appeared:
For the Appellant : Mr. Ashok Kumar Sharma
For the Respondent: Mr. R.K. Daga, Mr. Deepak Sharma
Point of law:
As a general rule, the Court should decline amendment if a fresh such on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and non exhaustive.
Headnote:
Constitution of India, Article 227 - Amendment Act 2002 - Civil Procedure Code , 1908 - Order 6 - Rule 17 - Suit for Osra, settlement of account - Partition of the property - In absence of any reason as to how and why the amendment sought is necessary for determining the real controversy between the parties - Court agree with findings arrived at by Trial Court and as such, there is no reason for this Court to interfere with the impugned order passed by the Trial Court. This writ petition has been filed under Article 227 of the Constitution of India.
Facts of the case:
Petition filed by petitioners-defendants - Application filed by defendants under Order 6 Rule 17 has been dismissed - Respondent no. 1 to 9-Plaintiffs filed a suit for Osra, settlement of account - Partition of property and permanent and mandatory injunction against defendants - On receipt of summons, defendants put in appearance and filed written statement as also counter claim - During pendency of writ petition, defendants filed an application under Order 6 Rule 17 CPC seeking amendment in written statement - Plaintiffs filed a reply thereto - After hearing arguments, Trial Court, vide its order, dismissed defendants’ application under Order 6 Rule 17 CPC.
Finding of the case:
Writ petition defendants filed application under Order 6 Rule 17 CPC with inexplicable delay and without stating any premise therefor - Suit which was pending adjudication since year 1988, which was well within knowledge of defendants as they pleaded in that regard in their written statement and cross-examined the plaintiff at length and even exhibits were marked on the plaint and written statement - In this way, although compromise was arrived at subsequently, yet amendment with regard to which was sought belatedly for which no plausible explanation was given - Court cannot allow an application seeking amendment unless there is sufficient reason to show that party intending to seek amendment acted fairly - It ought to have justness in its favour while application for seeking amendment is being adjudicated - In my considered view, in absence of any reason as to how and why the amendment sought is necessary for determining -Real controversy between parties, Court with findings arrived at by Trial Court and as such, there is no reason for this Court to interfere with impugned order passed by Trial Court - This writ petition has been filed under Article 227 of the Constitution of India - Power under Article 227 of the Constitution of India is to be exercised in cases of jurisdictional error, apparent perversity, patent illegality or manifest injustice, which is not situation here in this case.
Result: Writ petition Dismissed.
ORDER :
1. This writ petition has been filed by the petitioners-defendants (hereinafter referred to as ‘the defendants’) against the order dated 01.11.2018 passed by the Additional District Judge Court No. 11 Jaipur in Civil suit No. 125/2012, whereby the application filed by the defendants under Order 6 Rule 17 has been dismissed.
2. Facts of the case are that respondent no. 1 to 9-plaintiffs (hereinafter referred to as ‘the plaintiffs’) filed a suit for Osra, settlement of account, partition of the property and permanent and mandatory injunction against the defendants. On receipt of summons, the defendants put in appearance and filed the written statement as also the counter claim. During the pendency of the writ petition, the defendants filed an application under Order 6 Rule 17 CPC seeking amendment in the written statement. The plaintiffs filed a reply thereto. After hearing the arguments, the Trial Court, vide its order date 1.11.2018, dismissed the defendants’ application under Order 6 Rule 17 CPC. Hence, this writ petition.
3. Learned counsel for the defendants submits that Govind Das, through whom the plaintiffs no. 2 to 9 are claiming their rights, filed a suit titled Mahant Govind Das Chela Laxman Dass, Mahant Mandir Sita Ram Ji, Amer Road, Jaipur Versus Ram Sharan before Addl. Munsiff Magistrate No.1, Jaipur. In the said suit, on 21.3.2018, a compromise was arrived at between the plaintiffs no. 2 to 9 and defendant in the Lok Adalat in regard to temple Sitaram Ji, Amer Road, Jaipur. Based thereupon, a compromise decree was passed, which was subsequently confirmed vide judgment and decree dated 22.4.2018. Learned counsel further submits that from the aforesaid decree, it was amply clear that the plaintiffs had no concerned with the temple of Thakur Sita Ram Ji situated at Chaura Rasta, Jaipur. In this view of the matter, for effective adjudication of the controversy involved in the matter, the amendment sought for, was required to be allowed.
4. In support of his contentions, he has placed reliance on the following judgments:
(I) State Bank of Hyderabad Versus Municipal Corporation (2007) 1 SCC 765
(II) Baldev Singh Versus Manohar Singh (2006) 6 SCC 498
5. Per contra, learned counsel for the plaintiffs supported the impugned order and stated the same to be just and proper.
6. I have heard learned counsel for the parties and carefully perused the relevant material on record.
7. The Trial Court dealt with the judgments passed by the Hon’ble Apex Court referred to above, cited by learned counsel for the defendants, and observed that although it has been held by the Hon’ble Apex Court that the proviso incorporated under Order 6 Rule 17 CPC by way of Amendment Act 2002 would have no retrospective effect, yet on that sole basis, the application of the defendants cannot be allowed for the reason that the Court will have to see as to whether the amendment sought for by the defendants was necessary to be incorporated in the written statement.
8. The Trial Court while dismissing the defendants’ application under Order 6 Rule 17 CPC rightly held that the defendants failed to disclose as to how the amendment sought for was related to the pending suit, more particularly in view of the fact that the suit in which the compromise decree was passed, was pending since the year 1988 and the defendants possessed knowledge in this regard. Furthermore, with regard to the said pending suit, the defendants pleaded in their written statement and cross-examined the plaintiff at length and even exhibits were marked on the plaint and written statement. Hence, the amendment sought could have been incorporated since the inception or immediately after filing the written statement. The amendment was sought after a long time with a view to delay the trial for the reason that evidence of the plaintiffs had already been completed and the defendants had also submitted their affidavit in evidence. The defendants failed to disclose as to how the factum of passing
