Abhijeet Bos vs Ajay Jain and Others

N.K. Agarwal, J.—The instant petition is directed against the order dated 17.10.2007 passed by District Judge, Dhamtari in Civil Suit No. 3-A/ 2006 whereby and whereunder the application for amendment in the plaint preferred by the respondents/plaintiffs was allowed by the Court below.

Brief facts of the case are that on 17.10.2005, the plaintiffs (respondents herein) filed a suit for ejectment and arrears of rent against the defendant (petitioner herein). The plaintiffs case in brief is that the plaintiffs purchased the suit property including suit shop vide registered sale-deed dated 08.07.2004 and 26.08.2004 from one Naveen Patel S/o Late Bakor Bhai Patel and acquired its title. The defendant/petitioner denied the derivative title of the plaintiffs in the written statement filed by him on 09.01.2006.

After filing of written statement by the defendant, the plaintiffs moved an application under Order 6 Rule 17 C.P.C. for adding ground of eviction u/s 12(1)(c) of the Chhattisgarh Accommodation Control Act (hereinafter referred to as ''the Act'') on the premise that the petitioner defendant denied the plaintiffs title. Again one more application for'' amendment under Order 6 Rule 17 CPC was filed by the respondents on 28.02.2006. It seems that both the applications were allowed by the Court below and the said amendments were incorporated in the plaint.

Thereafter, the case was fixed for evidence and one witness of the plaintiffs was examined.

At this stage, the plaintiff again moved an application for amendment of the plaint under Order 6 Rule 17 CPC in order to elaborate the pleadings with regard to their title on the ground that the said amendment is necessary for just decision of the case and the same does not change the nature of the suit.

The petitioner vehemently opposed the said amendment on the ground that in terms of proviso to Order 6 Rule 17 of CPC, now the Court has no jurisdiction to allow the amendment after commencement of the trial unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

The Court below after considering the submissions made by the parties and even after noticing the proviso to Order 6 Rule 17 CPC, allowed the amendment holding that the amendment is clarificatory in nature and is necessary to avoid unnecessary objections which may be raised at the time of evidence and as such the requirement of the proviso to Order 6 Rule 17 CPC is satisfied hence this petition.

Shri Kishore Bhaduri, learned counsel for the petitioner would submit that immediately after filing of written statement by the petitioner, the respondents filed two applications for amendment which as per them were necessary in the light of averments made in the written statement. Thereafter, the amendment in question was sought after a lapse of a period of 11/2 years that too after commencement of trial which is neither bona fide nor could have been allowed by the Court below in view of the embargo placed by the proviso to Order 6 Rule 17 CPC, as the respondents failed to assign any reason to raise the same after commencement of trial. As per Shri Bhaduri, the facts regarding title of the plaintiffs over suit shop is well within their knowledge on the date of its purchase and in such situation, the Court will have no jurisdiction at all to allow the amendment of the plaint and, therefore, the order impugned having been passed without jurisdiction is deserves to be set aside.

Per contra, Shri Manoj Paranjape, learned counsel for the respondents/plaintiffs would submit that the said amendment is clarificatory in nature and does not change the nature of the suit and thus no prejudice is going to be caused to the petitioner and the trial Court in its wide discretion, allowed the application for amendment which should not be interfered by this Court in exercise of extra-ordinary jurisdiction under Article 227 of the Constitution of India. By placing reliance upon the decision of the Supreme Court in case of Surya Dev Rai Vs. Ram Chander Rai and Others, , he would submit that the supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Court within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave in justice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction. As such situation does not arise in the facts situation of the present case, so the petition deserves to be dismissed.

10.I have heard learned counsel for the parties and perused the record.

It is not in dispute that the application for amendment has been moved after commencement of trial.

Before considering the rival submissions made by the parties, it would be appropriate to advert to the proviso to Order 6 Rule 17 of CPC. Order 6 Rule 17 CPC reads as under:

Order 6 Rule 17 Amendment of pleadings : The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and so such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

A bare reading of the proviso would reveal that the proviso enacts and embargo/Bar against granting relief after commencement of trial unless the Court come to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of trial.

The Supreme Court in case of Vidyabai and Others Vs. Padmalatha and Another, in para 19 has observed as under:

It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the Court. It puts an embargoon exercise of its jurisdiction. The Court''s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing the Court will have no jurisdiction to all to allow the amendment of the plaint.

The aforesaid proposition of law is binding on this Court. By applying aforesaid proposition of law to the fact of the present case, it is clear that the plaintiffs/respondents have not assigned any reason whatsoever why they could not have raised the matter before the commencement of trial ? The fact of title acquired by them from their vender Naveen Patel was well within their knowledge since inception. After filing of written statement by the petitioner, the respondents have filed two amendment applications in which too they could have raised the matter which they did not and only after commencement of trial, they have applied for the said amendment for which as per the position of law settled by the Supreme Court, the Court do not have any jurisdiction to allow the application. Therefore, in the considered opinion of this Court, the order being without jurisdiction deserves to be and is hereby set aside and the application for amendment is rejected.

It is directed that the trial Court shall proceed to decide the suit in accordance with law on its own merits expeditiously.

No order as to costs.