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RAJASTHAN HIGH COURT
Vineet Kothari, J.
LRs of Imamuddin & Ors. —Petitioners
versus
Additional Civil Judge (J.D.) No. 1,
Bhilwara and Prem Kishan —Respondents
SB Civil Writ Petition No. 6956 of 2003
Decided on 16.2.2010
Counsel for the Parties:
For the Petitioners:Mr. Vikas Balia, Advocate.
For the Respondents:Mr. R.R. Nagori, Advocate.
IMPORTANT POINT
Amendment which has crucial bearing on fate of suit must be allowed.
Headnote:Civil Procedure Code, 1908—Order VI, Rule 17—Amendment of written statement— Rejection of application—By amendment in question it is merely to put on record certain subsequent developments which have taken place during pendency of suit which neither results in changing character of suit nor question of title—Purpose of amendment under Order VI, Rule 17 is to facilitate decision of real controversy in a suit—If such subsequent development is found to be relevant to controversy in hand, same should normally be allowed by way of amendment in pleadings— If tenant himself has purchased suit property and factum of purchase of property is sought to be brought on record by way of amendment it cannot be thrown off board—Impugned order set aside —Amendment application allowed. (Paras 10 to 12)
(2002) 6 SCC 1: AIR 2006 SC 2832: (2003) 5 SCC 150: 2009 AIR SCW 6644: AIR 2009 (Guj.) 171: RLW 1996 (1)116: 1995 (2) RLW(Raj.) 331: AIR 2002 (SC)3341: AIR 1977 SC 680: 2002 (1) JT 97: AIR 1973 SC 76: 2001(5)WLC (Raj) 398: 2006 (1) RLW 579: (2006) 6 SCC 498: (2006) 4 SCC 385: 2008 (3)DNJ (Raj.)1609—Referred to.
Result: Petition allowed.
Vineet Kothari, J.—This writ petition is directed against the order dated 13.7.2001 passed by the learned trial court of Additional Civil Judge (JD) No.1 Bhilwara in Civil Suit No. 2/1992, Imamuddin (tenant) v. Prem Kishan S/o Shri Kishan (plaintiff). By this order, the learned trial court rejected the application under Order 6, Rule 17 CPC filed by the defendants-petitioners Imamuddin seeking amendment in the written statement seeking to add para No. 25 in the written statement.
2. The case appears to have long chequered history of litigation between the parties. However, the short controversy involved before the court in validity of said order passed by the learned trial Court on 13.7.01 on an application filed for amendment under Order 6, Rule 17 CPC.
3. The facts relating to the present controversy in brief can be summarized as under:
4. A Civil Suit No. 301 of 1996 was filed by Mangilal Chunni Lal and Santosh Kumar S/o Sh Laxmi Narayan Agarwal (original tenant) and M/s Vijay Singh Mithalal, a registered partnership firm and Sh Imamuddin (sub-tenant) in respect of a suit property situated in Bhilwara. On 3.10.1969 one of the plaintiffs Mangi Lal in Civil Suit No. 301 of 1996 is said to have purchased the shops in question from other two plaintiffs through a registered sale deed. In the year 1973, one of the aforesaid tenant Shri Kishan is said to have died and thereafter his son Prem Kishan, respondent before the court in aforesaid writ petition appears to have filed another suit, namely, civil suit No. 202 of 1976 against Imamuddin and M/s Vijay Singh Mithalal, a registered partnership firm seeking eviction. On 22.7.1988 this court stayed the proceedings in said subsequent civil suit No. 202 of 1976 filed by Prem Kishan till the disposal of the original suit No. 301 of 1966. On 9.2.1990, the said Mangi Lal sold one shop in question by registered sale deed to Sh Imamuddin and on 12.2.1990 after three days sod another shop to Smt. Jubeda w/o Imamuddin by another registered sale deed.
5. On 24.1.2001, the original civil suit 301/1966 was dismissed as having abated after the death of Mangi Lal and thus, the stay of subsequent suit No. 202/1976 stood vacated and said subsequent suit which was stayed on 22.7.88 again revived on 24.1.01 after a gap of 13 years. After two years on 5.9.03, the said Imamuddin filed an application before the learned trial court to be substituted in place of deceased Mangi Lal, but the said application was rejected and this court on 5.9.03 dismissed SB Civil Second Appeal No. 191 of 2000 and 193 of 2002 and maintained the abatement of civil suit 301 of 1966. On 20.4.2001, the said Imamuddin also filed the present application under Order 6, Rule 17 CPC and prayed for amendment in his written statement in the aforesaid subsequent suit No. 202 of 1976 filed by Prem Kishan seeking to incorporate the subsequent developments in the form of purchase of one of the shops from Mangi Lal on 9.1.90 and another shop by his wife on 12.2.90. It is this application, which came to be dismissed by the learned trial court by the impugned order dated 13.7.01 mainly on the ground of said application being belated.
6. Being aggrieved by the said order, the LRs of said Imamuddin have approached this court by way of present writ petition. That earlier a revision petition was filed in this court challenging the very same order dated 13.7.01. However, the said revision petition No. 832 of 2001 was held to be not maintainable by this court in view of amendment in the CPC and the judgment of the Hon’ble Supreme Court and accordingly was dismissed on 9.10.03.
The present writ petition was filed under Article 227 of the Constitution of India in this Court on 16.11.01.
7. Mr. Vikas Balia, learned counsel appearing for the petitioner-legal representatives of said Imamuddin urged that the learned court below has erred in rejecting the said application under Order 6, Rule 17 CPC as belated in suit No. 202 of 1976 because the said
