Bhikhaji vs Brijlal and

Justice A.K. Shrivastava

By this petition under Article 227 of the Constitution of India, the petitioner is challenging the validity of the impugned order dated 02.03.2012 (annexure P/7) by which the plaintiff''s application under Order 6 Rule 17 CPC has been rejected. A suit for declaration and injunction in respect to certain immovable property, the description whereof has been mentioned in the plaint has been filed by the plaintiff.

The stand of the defendants in the written statement is that plaintiff is not in possession of the suit property and, therefore, the suit is not maintainable.

During the pendency of the suit and after the examination of the plaintiff''s evidence and witnesses, an application to amend the plaint has been filed praying that during the pendency of the suit the plaintiff has been dispossessed and by submitting the amendment application, it has been prayed that plaint be permitted to be amended and by adding the relief clause of possession and further necessary pleadings about the dispossession of plaintiff.

This application was vigorously opposed by defendants by filing written reply.

The learned Trial Court by the impugned order came to hold that for 10 dates the matter was adjourned to record the evidence of the plaintiff and ultimately he led the evidence and after the defendants submitted affidavit under Order 18 Rule 4 CPC, the said application has been filed. Thus, the proposed amendment is malafide and after a great delay the said application has been filed and thus dismissed the application.

In this manner, this petition has been filed by the plaintiff.

The contention of Shri A.D. Mishra, learned counsel for the petitioner is that initially the suit was filed on the averments that the plaintiff is in possession of the suit property and defendants are trying to interfere in the suit. However, by filing an application to amend the plaint it has been submitted by plaintiff that during the pendency of the suit he has been dispossessed and, therefore, it has become necessary to file application to amend the plaint including the relief clause of possession and in these circumstances on the basis of subsequent events, if the amendment application is filed, it should have been allowed by learned Trial Court and by not doing so, the learned Trial Court has acted illegally with material irregularity in exercise of jurisdiction vested in it.

On the other hand, Shri Sameer Seth, learned counsel for the respondents argued in support of the impugned order and by placing reliance on the decision of the Supreme Court Vidyabai and others Vs. Padmalatha and another 2009 AIR SCW 899 has submitted that once the trail has commenced and the evidence of the plaintiff is over, the vehicle cannot be plied in the reverse gear and the plaintiff cannot be permitted to file application seeking relief of amendment particularly when from the beginning the stand of the defendants in the written statement is that plaintiff is not in possession of the suit property. It has also been submitted by him if by amending the plaint the plaintiff is permitted to amend the plaint by adding the relief of possession, the suit would become time barred. Hence, the time barred application to amend the plaint cannot be permitted to be allowed. Learned counsel by inviting my attention to the impugned order has submitted that plaintiff in his cross examination himself has admitted that he has been dispossessed by the defendants and thus the application has been rightly rejected by the learned Trial Court.

The learned Trial Court has rejected the amendment application on the ground that after the closure of the plaintiff''s evidence and after defendants have filed the affidavit under Order 18 Rule 4 CPC, the said application which has been filed cannot be allowed and the same has also been filed after a great delay.

Having heard learned counsel for the parties, I am of the view that this petition deserves to be allowed.

On bare perusal of the impugned order, it is gathered that the amendment application has been rejected only on the ground that it has been filed after great delay and after the evidence of the plaintiff was over. True, for 10 times opportunities were given to the plaintiff to adduce his evidence and thereafter an application was moved after the closure of the plaintiff''s evidence. But to me, if during the pendency of the suit the plaintiff was dispossessed irrespective of the fact that he has been examined, the amendment application cannot be dismissed because the same has been filed on subsequent events.

While considering the application under Order 6 Rule 17 CPC there is no water tight compartment of universal application not to allow the amendment application if trial has been commenced. The decision of Vidyabai (supra) is thus distinguishable upon the material facts of the present case on account of subsequent events which have take place.

The Court should keep two principle in its mind while considering the application under Order VI Rule 17 CPC and should allow application of amendment at any stage of the suit. Firstly if the proposed amendment is not causing any injustice to the other party and secondly it is necessary to decide the real controversy in the matter. By applying the aforesaid conditions upon the facts of the present case, this Court finds that the proposed amendment is not causing any injustice to the defendants nor it can be said that it is necessary to decide the real matter is controversy.

The question whether the amendment application has become time barred or the suit is barred by period of limitation, and whether the plaintiff has been dispossessed during the trial or earlier to filing of suit, all these points are questions of facts and, therefore, if the defendants file necessary application to amend the written statement, in rebuttal, an issue will be famed in this regard, if not already framed and these points can be decided at the time of final decision of the suit.

However, the plaintiff should be quite vigilant and should have filed the application immediately when according to him he was dispossessed and the application is thus delayed and for that defendants can be compensated with costs. The amendment application of plaintiff is hereby allowed subject to payment of cost of Rs. 5000/-(Rupees Five thousand only) which shall be deposited on or before 30.9.2012 before learned Trial Court failing which the impugned order shall allow to remain stand and this petition shall stand dismissed.

The amount of cost which shall be deposited by the plaintiff, defendants no.1 and 2 shall be free to withdraw the same. The plaintiff is hereby permitted to amend the plaint and the defendants shall be free to file necessary application to amend the written statement in rebuttal and also at liberty to raise objection with regard to the limitation by raising a plea that the suit is time barred. If such a plea is raised, the learned Trial Court shall frame an issue in that regard, if already not framed. This petition is accordingly allowed. The order impugned dated 02.03.2012 (annexure P/7) is hereby set aside. No costs.