Balwant Singh Jadwan and another vs Ajit Kumar Goyal and six others

By means of present writ petition, the petitioner seeks following relief, among others: "Issue a writ, order or direction in the nature of certiorari quashing the order dated 13.03.2015 passed by ld. Civil Judge (S.D.), Dehradun (Camp Massoorie) in O.S. No. 325 of 2009, Balwant Singh Jadan vs. Ajit Kumar Goyal and others and also the order dated 23.01.2016 passed by Ld. 6th Additional District Judge, Dehradun in Civil Revision No. 43 of 2015, Balwant Singh Jadwan vs. Ram and others and further the amendment application (paper no. 87Ka) moved by the petitioner/plaintiffs in O.S. No. 325 of 2009, Balwant Singh Jadwan vs. Ajit Kumar Goyal and others for the amendment of the plaint be allowed."

The petitioners (plaintiffs), filed a suit for permanent prohibitory injunction before the Trial Court. The said suit reached at the stage of arguments and then only it came to the notice of the plaintiffs/petitioners that certain amendments are sought to be incorporated in the plaint. The Trial Court, after considering the provisions of Order 6 Rule 17 C.P.C. including its proviso, did not think it proper to permit the plaintiffs to amend the plaint. While doing so, the Trial Court has not only discussed the relevant law on the point, but has also mentioned several decisions of Hon''ble Apex Court and various High Courts'' in coming to a definite conclusion that such an amendment cannot be permitted at such a belated stage, especially when the suit is pending since 2009 and is at the stage of final arguments. Aggrieved against the order dated 13.03.2015, plaintiffs/petitioners filed a Civil Revision, which was also dismissed by learned Additional District Judge, Dehradun vide order dated 23.01.2016. Hence the present writ petition.

Not only the Trial Court, but, also learned Lower Revisional Court has appropriately discussed relevant provision of law on the point, as also the decisions of Hon''ble Apex Court and various High Courts in support of their conclusions.

The sweep and ambit of Order 6 Rule 17 C.P.C. is very wide. The exceptions, broadly speaking, are ? if the Court finds that the petitioners have not come to the Court with clean hands; the character of the suit is changed; the amendment application is unusually belated; there is malafide on the part of the applicant; there is withdrawal of earlier admitted facts and the matter is covered by proviso to Order 6 Rule 17 CPC.

Order 6 Rule 17 C.P.C. says that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such manner and on 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. The same is subject to proviso, which is as follows: "17. Amendment of pleadings. .................................................. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial."

In Gayathri Women Welfare Association vs. Gowramma, (2011) 1 UAD 416, the Hon''ble Apex Court passed the following Order: "30. In the case of Revajeetu Builders & Developers vs. Narayana Swamy & Sons, (2009) 10 SCC 84, this Court reiterated the very wide discretion the Courts have in the matter of amendment of pleadings. These observations were in the context of an application filed by the appellant, seeking amendment of the original plaint including the prayer clause being rejected by the High Court upon coming to a definite conclusion that the appellant while seeking permission to amend the plaint is trying to introduce a new case, which was not his case in the original plaint and the proposed amendment, if allowed, would certainly affect the rights of the respondents adversely. It was also held that any such amendment, which changes the entire character of the plaint, can not be permitted and that too, after a lapse of four years and after the institution of the suit. This Court, upon a detailed consideration of the historical background of Order VI Rule 17 and upon a comprehensive survey of the case law, concluded that the amendment can be permitted, if it was necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment can not be allowed. It was also observed as follows:- "22. .... The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court." [Emphasis supplied]

In spite of ad interim injunction granted in favour of the petitioners, respondents raised construction over the land. Petitioners moved an amendment application being Paper No. 87-Ka praying that the illegal constructions raised by the respondents over the land possessed by the petitioners be directed to be removed and the possession of the petitioners be restored. The said amendment application was rejected by the Trial Court on the ground that the proposed amendment has been sought at a belated stage. Petitioners filed a Civil Revision against the same, which was also dismissed.

It was, therefore, not open to the petitioners to seek amendment in the plaint at such a belated stage. This Court has no reason to interfere in the concurrent findings of two Courts below. Writ Petition therefore, fails and is accordingly dismissed.

Urgency Application being IA No. 1327 of 2017 also stands disposed of.