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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
ARUN BHANSALI, J.
Gurmel Singh S/o Sh. Sukhdev Singh - Appellant
Versus
Raj Kaur W/o Late Sh. Darshan Singh – Respondent
S.B. Civil Writ Petition No. 18665, 18666 of 2022
Decided on : 06-04-2023
Civil Procedure Code,1908 - Order VI - Rule 17 - Suit property - Temporary injunction - Respondents/plaintiffs filed a suit for perpetual injunction alongwith an application for temporary injunction against petitioner/defendant before trial court - Written statement to suit and reply to applications for temporary injunction were filed on denying averments made by respondents/plaintiffs and claiming that they are in possession of suit property - Whether in a case of present nature, wherein the allegations in the application under Order VI Rule 17 CPC pertain to dispossession during pendency of suit and seeking consequential amendment amounts to change in the nature of the suit, is no more res-integra - Plea raised that as the amendment allowed would take away the jurisdiction of the trial court and, therefore, the amendment could not have been allowed, has been noted only for rejection. Para 11
Finding of Court :
Plea raised that as amendment allowed would take away jurisdiction of trial court and amendment could not have been allowed, has been noted only for rejection - Only because on account of amendment sought, which is necessary for deciding real controversy in suit purportedly would take away jurisdiction of trial court, cannot be a reason not to entertain said application, as the application based on the subsequent event and/or for any other reason would have to be made in pending suit, same cannot be made anywhere else and as filing a fresh suit, unnecessarily leads to multiplicity of proceedings, application shall have to be entertained by court, in which the suit is pending - As to whether amendment permitted in present suit would take away jurisdiction of trial court, also only based on assumption so far as no plea in this regard has been raised by the petitioner, which petitioner would always be free to raise in case he has any such objection and plea raised essentially amounts to putting cart before the horse and as such the same is rejected.
Result : writ petitions dismissed
ORDER :
1. These petitions have been filed by the petitioner seeking to question the validity of the order dated 23.09.2022 (Annex.P/6) passed by Civil Judge (Jr. Division), Pilibanga (Hanumangarh) whereby the applications filed by the respondents/plaintiff under Order VI Rule 17 CPC seeking amendment in the suit and applications for temporary injunction have been allowed.
2. It is, inter-alia, indicated in the petition that the respondents/plaintiffs filed a suit on 18.03.2015 for perpetual injunction alongwith an application for temporary injunction against the petitioner/defendant before the trial court. Written statement to the suit and reply to applications for temporary injunction were filed on 04.03.2016 denying the averments made by the respondents/plaintiffs and claiming that they are in possession of the suit property. Prior to that the respondents/plaintiffs filed applications under Order VI Rule 17 CPC seeking to amend the suit on 03.04.2015, inter-alia, with the submissions that after filing of the suit on 18.03.2015, on 27.03.2015 the petitioner/defendant has forcibly taken possession of the suit property and has constructed a boundary wall by demolishing the existing temporary boundary wall. Based on which, the amendment was sought in the plaint and the application seeking temporary injunction by adding paragraph “6A’” in the plaint and clause “B” in the relief clause. Further relief was sought for possession and removal of construction made by the petitioner/defendant alongwith a prayer for mandatory injunction.
3. The petitioner/defendant filed response to the applications, inter-alia, with the submissions that even on the date when the suit was filed, the petitioner was in possession and that the suit was filed based on incorrect facts by concealing material facts and that the amendment sought, if allowed, the same would change the nature of the suit from mandatory injunction instead of perpetual injunction.
4. After hearing the parties, the trial court allowed the applications under Order VI Rule 17 CPC while observing that all the issues pertaining to the subject-matter must be decided in the same suit, which is main purpose for incorporating the provisions of Order VI Rule 17 in CPC and that by permitting the amendment sought, the nature of the suit would not be changed; and consequently allowed the applications.
5. Learned counsel for the petitioner made vehement submissions that the trial court was not justified in accepting the application filed by the plaintiffs under Order VI Rule 17 CPC, inasmuch as the nature of the suit, which was filed for injunction would now be changed in a suit for possession, which nature of amendment is not permissible under Order VI Rule 17 CPC. Submissions were made that immediately on filing of the suit and application for temporary injunction, application seeking appointment of Commissioner was filed with the contentions that the plaintiffs were not in possession of the suit property, however, the application remained pending and in the meanwhile on 03.04.2015, application seeking amendment was filed with the contentions that the plaintiffs were dispossessed from the property and, therefore, they may be permitted to amend the suit, which has totally changed the nature of the suit, which is not permissible and, therefore, the applications which were filed by the plaintiffs/respondents, should have been rejected by the trial court. Further submissions have been made that by permitting the amendment sought, the matter no more remains that of the jurisdiction of the trial court and such an amendment, which takes away the suit out of the jurisdiction of the trial court, could not have been permitted and on that count also, the application was liable to be dismissed. Reliance has been placed on Asian Hotels (North) Ltd. vs. Alok Kumar Lodha & Ors. : Civil Appeal Nos.3703- 3750 of 2022 decided on 12.07.2022 by Hon’ble the Supreme Court.
6. I have considered the submissions made by the
Point of Law : Where a suit was filed without seeking an appropriate relief, it is a well settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary a....
Point of Law : Amendments, which are sought to determine the real question in controversy between the parties, should be permitted to be made.
The central legal point established in the judgment is the restriction on allowing amendments after the trial has commenced, as per the mandatory proviso of Order VI rule 17 of CPC.
The principle that amendments to pleadings should be allowed to ensure justice and to determine the real questions in controversy, provided they do not cause injustice or prejudice to the other party....
Amendments to pleadings after the commencement of trial require showing due diligence; failure to do so warrants dismissal, especially if the amendment fundamentally alters the nature of the proceedi....
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