Arun Kumar vs Gulam Das and Others

Nawal Kishore Agarwal, J.—The instant petition is directed against the order dated 13.12.2010, passed by the Civil Judge Class II, Simga, in Civil Suit No. 24-A/08, whereby the petitioner''s application for amendment filed under Order 6 Rule 17 of CPC has been dismissed. Brief facts of the case in nutshell are that: the plaintiff instituted a suit against the respondent no. 1 also arraying the respondent no. 2/State of Chhattisgarh as a formal party in the suit, admitting the respondent''s title over the suit land and claiming title on the basis of adverse possession. Later on, by way of amendment, the petitioner wanted to amend his plaint on the ground that the defendant/respondent no. 1 has no title over the suit land since Patta granted in his favour is void ab-initio and he has no right to interfere in his possession.

The trial court held both the prayers are destructive to each other and consequently dismissed the application.

Shri Agrawal, learned counsel appearing for the petitioner would contend that it is well settled law that while entertaining the amendment application the court should not take into consideration the merits of the matter and the court below after entering into the merits of the matter, dismissed the amendment application which is illegal and deserves to be set aside.

Having heard the counsel appearing for the petitioner and having perused the order impugned, copy of plaint and amendment application, I am of the considered opinion that trial court has not committed any illegality warranting interference of this court under Article 227 of the Constitution of India.

The instant suit is filed by the petitioner for declaration of title and injunction based on adverse possession against the defendant/respondent no. 1. Now, by way of amendment application, the petitioner wants to amend his pleadings that the defendant has no title over the suit as Patta granted in his favour is void ab-initio and consequently he has no right to interfere in his possession. Therefore, on one hand, petitioner sought declaration to the effect that petitioner is in adverse possession of the suit land against the defendant no. 1, and on the other hand, by way of amendment application he wants to challenge the title of the defendant no. 1. Amendments, in order to change constitutionally & fundamentally the nature of the suit, and/or to add pleadings/prayers which are destructive/contrary to the existing pleadings, should not be allowed and the trial court in its discretion, has rightly dismissed the amendment application.

It is well settled principle of law that this Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, should refrain itself from interfering with the order passed by the Court below, except in such cases where perversity, illegality, irregularity or jurisdictional error is writ large on the face of the record, which is not in the present case. The petition has no merit and the same is accordingly dismissed in limine.