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2025 Supreme(Raj) 1638
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
MUNNURI LAXMAN, J.
Harisingh @ Harish S/o Shri Kishanlal - Appellant
Versus
Legal Heirs of Kesharsingh, S/o Santosh Singh - Respondent
S.B. Civil Writ Petition No. 5771/2024
Decided on : 03-03-2025
Advocate Appeared:
For the Appellant : Mr. Bharat Boob, Adv.
For the Respondent: Mr. Abhinav Jain, Adv.
Amendments to pleadings may be allowed post-trial commencement if due diligence is shown, ensuring all claims are resolved in one proceeding to prevent multiplicity of litigation.
Headnote:
(A) Civil Procedure Code, 1908 - Order VI Rule 17 - Amendment of pleadings - The court may allow amendments to pleadings at any stage, but not after trial commencement unless due diligence is shown - The plaintiff sought to declare a sale agreement and power of attorney as void, while defendants sought possession based on a sale-deed. (Paras 11, 12, 14)
(B) Writ Jurisdiction - The challenge to the trial court's order allowing amendment was rejected as the trial court exercised its discretion properly, considering the necessity of resolving all claims in one suit to avoid multiplicity of litigation. (Paras 15, 16)
Facts of the case:
The plaintiff filed a suit claiming that a sale agreement and power of attorney were not executed by him and sought to declare a sale-deed null and void. The defendants countered with a claim for possession based on the sale-deed. The trial court allowed an amendment to the defendants' pleadings after the plaintiff's evidence was closed.
Findings of Court:
The trial court's order allowing the amendment was upheld, emphasizing the need for all claims to be resolved in one proceeding.
Issues: Whether the trial court's order allowing amendment of pleadings after the commencement of trial was justified.
Ratio Decidendi: The court held that amendments are permissible to determine the real question in controversy, and the trial court acted within its discretion in allowing the amendment to avoid multiplicity of suits.
Result: Writ petition dismissed.
JUDGMENT :
1) The present writ petition has been filed challenging the order dated 09.02.2024 passed by the learned Additional District Judge No.3, Jodhpur Metropolitan in Civil Original Suit No.14/2009 (NCV No.10844/2014), whereby the application filed by the defendants seeking amendment of pleadings and relief in the counter-claim, has been allowed.
2) The present petition has been filed at the instance of the plaintiff in the suit.
3) The background of the facts reveled that the plaintiff filed a suit to declare that the sale agreement dated 20.03.2006 and Power of Attorney dated 30.03.2006 were not executed by him and consequently, sought to declare the sale-deed dated 11.07.2006 as null and void. Additionally, he also sought relief for cancellation of mutation made in pursuance of the sale-deed.
4) It appears that the plaintiff filed an application seeking interim injunction. The same was dismissed by the trial court as well as the appellate court and revisional court. The defendants also filed written statement and counter-claim seeking perpetual injunction restraining the plaintiff from interfering their possession on the basis of agreement for sale and sale-deed.
5) During the pendency of the suit proceedings, the first defendant died on 26.04.2017. The trial was also commenced and the plaintiff’s evidence was concluded. At that stage, the defendants had filed the present application seeking amendment of pleadings in the written statement and counter-claim. The said application was allowed by the trial court vide order dated 09.02.2024. Therefore, the plaintiff filed the present writ petition challenging the said order.
6) Heard the learned counsel for both the parties.
7) The main contention of learned counsel appearing for the petitioner/plaintiff is that the criminal proceedings, which were initiated at the instance of the defendants, culminated into filing of the Final Report whereby the Investigating Officer clearly held that the defendants have never been in possession as on the date of filing of the suit and it was the plaintiff, who was in possession. Therefore, allowing the amendment of the declaration and recovery of possession amount to changing the nature of the dispute. It is also his contention that the amendment application was belated and the same was filed after the evidence was commenced. Therefore, the application ought not to have been allowed by the trial court unless the defendants establish that in spite of due diligence could not bring the additional facts and relief on record.
8) Per contra, the learned counsel appearing for the respondents/defendants has submitted that the plaintiff taking advantage of death of the first defendant and also pandemic situation has illegally occupied the disputed suit land and such a fact came to be known only when the legal heirs of the defendants visited the disputed land on 30.01.2023. They came to know that the plaintiff occupied the suit property in the year 2020-2021 taking advantage of lock down. Having known such fact, the present application has been filed for amendment. According to him, in spite of due diligence, the defendants could not know the fact of illegal encroachment in the circumstances of death of the first defendant. Therefore, the learned trial Judge has rightly exercised his discretion to allow the application and such order requires no interference.
9) The learned counsel for the respondents also submitted that the plaintiff accepted the cost, as such, he has no right to assail the order impugned. It is also his contention that the relief sought by the plaintiff was for declaration and cancellation of the documents and the amended relief sought is only declaration and recovery of possession. Both the claims required to be adjudicated in the same proceedings instead of relegating the party to file a separate suit. Therefore, he prays for dismissal of the writ petition.
10) I have considered the arguments of both the parties and perused the impugned
