Karam Chand @ Karma vs Tarsem Lal and Others

Ram Chand Gupta, J.

C.M.No.16660-CII of 2011

Application is allowed subject to all just exceptions.

Civil Revision No.4205 of 2011

The present revision petition has been filed under Article 227 of the Constitution of India read with Section 151 of the CPC (hereinafter to be referred as the `Code'') for quashing of impugned order dated 10.6.2011, Annexure P7, passed by learned Civil Judge, Junior Division, Mukerian, vide which application filed by the Petitioner under Order VI Rule 17 of the Code for amendment of the plaint has been dismissed.

I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.

Facts relevant for the decision of present revision petition are that a suit for possession of land measuring 0K-10M out of land bearing khasra Nos. 3525/1063 (0K-15M), situated in Village Rakri, H.B. No. 592, as per jamabandi for the year 2003-04 was filed by present Petitioner against Respondents-Defendants, on the plea that he is owner of the said khasra numbers and however, out of the said khasra numbers, 10M of land has been encroached upon by Respondents-Defendants. Respondents-Defendants filed written statement by taking the plea that in partition they became owner in possession of land measuring 1k comprised in khewat No. 768/898 Khasra No. 3526/1063(1-0) and that they had never encroached upon any part of the property belonging to Petitioner-Plaintiff. Issues were framed. Case was fixed for evidence of Plaintiff, when the present application was filed for amendment of the pleadings.

It is pertinent to reproduce the amended provision of Order VI Rule 17 of the Code, which reads as under:

Amendment of pleadings.-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:

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.

Law has been well settled by Hon''ble Apex Court in Vidyabai and Ors. v. Padmalatha and Anr. 2009 (1) RCR (Civil) 763 that no application for amendment is to be allowed after commencement of trial, unless the Court comes to the conclusion that in spite of due diligence, the parties could not have raised the matter before commencement of trial. However, amendment can be allowed, if it is necessary for decision of controversy in dispute.

However, in view of the fact that specific plea was taken by Petitioner-Plaintiff that only 10 marlas of land out of 15 marlas comprised in Khasra No. 3525/1063 was encroached upon by Respondents-Defendants, he cannot be permitted to amend the plaint now by taking the plea that the entire khasra number has been encroached upon by Respondents-Defendants.

So far as the report of Local Commissioner is concerned, it has been rightly observed by learned trial Court that evidentiary value of the same could be seen at the time of final decision of the case and not at this stage.

Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Moreover, law has been well settled by Hon''ble Apex Court in Surya Dev Rai Vs. Ram Chander Rai and Others, , that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:

Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

Hence, the present revision petition is, hereby, dismissed being devoid of any merit.