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2015 Supreme(J&K) 135
JAMMU & KASHMIR HIGH COURT AT JAMMU
Mohammad Yaqoob Mir, J.
Sushil Rishi - Appellant
Versus
Vinod Rishi and Ors. - Resopndent
Pet. u of s 104 No. 144 of 2014 and CMA No. 185 of 2014
Decided On : 25-02-2015
For the Appellant :Rahul Bharti, Advocate
For the Respondents:R.K. Gupta, Sr. Advocate and Prem Sadotra, Advocate
The power to allow the amendment under Order 6 Rule 17 CPC is wide and can be exercised at any stage of the proceeding in the interest of justice.
Headnote:
Amendment - Civil Procedure - Section 115 Code of Civil Procedure - Section 104 of the J&K State Constitution - Order 6 Rule 17 CPC - Section 103 of the State Constitution read with Article 226 of the Constitution of India and Section 104 of State Constitution read with Article 227 of the Constitution of India
Fact of the Case:
The respondent filed a suit for partition of a property. The petitioner and other defendants raised a preliminary objection regarding the omission of certain assets and properties in the suit. The respondent filed an application for amendment of the plaint, which was allowed by the trial court.
Finding of the Court:
The trial court found that the proposed amendment was necessary for determining the real controversy between the parties and that the power to allow the amendment is provided under Order 6 Rule 17 CPC. The court also noted that the suit was at its initial stage and allowing the amendment would not cause prejudice to either party.
Issues: The main issue was whether the amendment of the plaint should be allowed under Order 6 Rule 17 CPC, considering the proviso that restricts amendments after the commencement of trial.
Ratio Decidendi: The court held that the proviso to Order 6 Rule 17 CPC is enabling and not disabling, and that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice.
Final Decision: The court dismissed the petition, stating that the trial court did not exceed its limits in allowing the amendment, and no case was made out to persuade the court to exercise supervisory power.
Mohammad Yaqoob Mir, J.:-
1. Aggrieved by the order dated 5.11.2014 passed by the court of 2nd Additional District Judge, Jammu allowing application for amendment as was filed by the respondent-plaintiff, instant petition has been filed. The order being neither appealable nor amenable to Revisional jurisdiction in view of proviso to Section 115 Code of Civil Procedure. Therefore, petitioner seeks invocation of supervisory power under Section 104 of the J&K State Constitution.
2. The supervisory power is to be invoked so as to ensure that the Courts work within the bounds of the law. Such power is not to be exercised so as to be a substitute for Revisional power which Revisional power has been curtailed in terms of Proviso to Section 115 CPC.
3. Earlier, under Section 115 CPC, the Revisional power could be exercised relatable to all orders passed by the Subordinate courts, so as to check any type of miscarriage of justice, any illegality or irregularity in proceedings. Frequent invocation of Revisional power was noticed to be resulting in protraction in the suit proceedings, as a result, whereof, Section 115 CPC has been amended and the proviso has been incorporated providing for exercising the power of revision only vis-a-vis orders operation of which has terminated the suit or other proceedings or vis-a-vis the orders which if passed in favour of the aggrieved party would terminate the suit or other proceedings.
4. The amendment so incorporated to curtail the Revisional power cannot and is not to affect the superintendence and supervisory power of the Court nor the power exercisable under Section 103 of the State Constitution read with Article 226 of the Constitution of India and Section 104 of State Constitution read with Article 227 of the Constitution of India. But such power has to be exercised in a manner which may not have trappings of negating the operation of the proviso to Section 115 CPC.
5. Coming to the case in hand, what has happened is that the respondent No. 1 has filed suit for partition of House No. 575 and the land underneath measuring one kanal and one marla covered by survey No. 53 situated at Colonel Colony Opposite Jammu Airport, Jammu Cantt.
6. The petitioner and the respondents No. 2 to 5 (defendants) filed the written statement and raised a preliminary objection to the effect that the respondent No. 1 (plaintiff) with a design omitted to incorporate the entire assets and immovable properties of late Krishan Lal Rishi in the suit.
7. Out of issues framed, issue No. 5 has been treated as a preliminary issue which reads as under:
"5. Whether the suit is not maintainable? If so, How? (OPD)".
8. Before the preliminary issue could be decided, the plaintiff filed an application under order 6 rule 17 CPC seeking amendment of the plaint which has been resisted by the defendants (petitioner and respondents No. 2 to 4).
9. Learned Trial Court has observed that
(a) the proposed amendment in the opinion of the Court is necessary for determining the real controversy between the parties.
(b) Order 6 rule 17 CPC clothes the Court with power and duty to allow either party to amend the pleadings at any stage of the proceedings and to allow the amendment which is necessary for determining the controversy between the parties. Then has observed that the amendment is aimed at introducing left over properties which are in continuity to the case set up by the plaintiff in the plaint.
(c) Application if not allowed would mean that the plaintiff shall institute a fresh suit. Relying on the judgment of the Hon'ble Apex Court reported in (2006) 6 SCC 498 has finally observed that the case is at its initial stage, amendment application is allowed subject to cost of Rs. 500/-. Amended plaint has already been taken on record. The defendants shall file the fresh written statement.
10. Learned counsel for the petitioner would submit that the learned trial Court has allowed the amendment which is to cause prejudice to the petitioner as o
