Plaint amendment under Order VI Rule 17 CPC allowable at appellate stage for subsequent events if due diligence met; premature assessment of Local Commissioner's report veracity renders rejection perverse.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioner has assailed the order passed by the learned Appellate Authority, in terms whereof, the application filed by the petitioner herein under Order 6 Rule 17 of the CIVIL PROCEDURE CODE seeking an amendment of the plaint has been dismissed.

2. Learned Senior Counsel for the petitioner has argued that the petitioner has filed a suit for injunction which was dismissed by the learned Trial Court. Feeling aggrieved, the petitioner preferred an appeal. During the pendency of the appeal, the petitioner preferred an application under Order 39 Rule 1 and 2 of the CIVIL PROCEDURE CODE , in which a status quo order was passed by the learned Appellate Court in terms of Annexure P-4 dated 18.03.2015. As the respondent did not adhere to the said status quo order, the petitioner filed an application for the appointment of a Local Commissioner to visit and inspect the land and report the nature and extent of construction being raised by the respondent over the suit land. The application was allowed by the learned Appellate Court and the Local Commissioner submitted his report which is also on record. By referring to the report of the Local Commissioner, learned Senior Counsel submitted that as the Local Commissioner stated in his report that he had found a house alongwith veranda which seemed to be freshly constructed andexisting upon the suit land, an application was filed under Order 6, Rule 17 of the CIVIL PROCEDURE CODE by the petitioner (Annexure P-8) seeking amendment of the plaint qua the events which took place during the pendency of the appeal. However, the same stands rejected in terms of the impugned order.

3. Learned Senior Counsel has submitted that a perusal of the impugned order would demonstrate that the same is per se perverse as the learned Appellate Court has not appreciated that as the necessity to file the application under Order 6, Rule 17 of the CIVIL PROCEDURE CODE arose on account of the development, which took place during the pendency of the appeal, interest of justice demanded that the said application should have been allowed. Learned Senior Counsel has further submitted that otherwise also the reasons which have been assigned in the impugned order are not sustainable because, the learned Court went on to make observations on merit of the proposed amendment without understanding and appreciating that all that the petitioner was praying for was an amendment of the plaint which if allowed would have had given an opportunity to the other side to file a written statement thereto. Allowing the application, would not have amounted to accepting the contention which were proposed to be raised in the application, which obviously were to be proved by the parties by leading cogent evidence. Accordingly, learned Senior Counsel submitted that as the impugned order is bad, the same be set aside and the proposed amendment be allowed to be incorporated in the plaint.

4. On the other hand, learned Senior Counsel for the respondent has justified the impugned order. By referring to the reply filed to the application under Order 6 Rule 17, learned Senior Counsel submitted that as no case was made out to allow the amendment of the plaint, learned Appellate Court rightly rejected the application. Learned Senior Counsel further submitted that the report of the Local Commissioner was no report in the eyes of law for the reason that, as rightly pointed out by the learned Appellate Authority also, the Local Commissioner