Manish Singh & Another vs Indu & Others

Sudhanshu Dhulia, J

This writ petition has been filed by the petitioners challenging the order dated 21.04.2012 passed by the Additional District Judge/FTC III Haridwar in Civil Revision No.61 of 2009 "Smt. Indu Vs. Manish Singh and others" whereby the revision under Section 115 of the Code of Civil Procedure has been allowed, by which the amendment application filed by defendant no.1 seeking amendment in the written statement has been allowed.

The learned Trial Court had framed the issues on 22.10.2007 on the basis of the pleadings of the plaintiffs and defendant no.1. Ultimately thereafter the amendment application was filed by the defendant no.1/respondent no.1 for amending her written statement on 27.01.2009. According to the plaintiffs, this mischievous act has been done by defendant no.1/respondent no.1 in order to deny the claim of the petitioners/plaintiffs as what was sought to be amended was the date of construction which was having a crucial bearing in the matter. The trial court rejected the amendment application of defendant no.1/respondent no.1 vide order dated 23.03.2009 on ground that the trial itself has proceeded, and the amendment is being sought at a very belated stage. Aggrieved by the order dated 23.03.2009 the defendant no.1/respondent no.1 had filed a revision which was allowed by the revisional court vide order dated 21.04.2012 and a liberty was granted to defendant no.1 to amend her written statement.

Aggrieved the plaintiffs/petitioners have filed the present writ petition under the supervisory jurisdiction of this Court under Article 227 of the Constitution of India challenging the order dated 21.04.2012 passed by the revisional court.

The contention of the learned counsel for the petitioners would be that it was not just and proper for the revisional court to allow the amendment application of defendant no.1/respondent no.1 under the facts and circumstances of the case at such a belated stage. Reliance has been placed by the petitioners on proviso to Order 6 Rule 17 of Code of Civil Procedure. Order 6 Rule 17 of the Code of Civil Procedure reads as under:-

"17. 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.]"

Learned counsel for the respondents, on the other hand, relying on the decision of the Hon'ble Apex Court in the case of Sumesh Singh Vs Phoolan Devi and Others reported in (2009) 12 SCC 689 would argue that the proviso which has been incorporated in Order 6 Rule 17 of the CPC by Act No.22 of 2002 with effect from 01.07.2002 would not be applicable in the present case since the suit has been filed in the year 1999.

This Court is of considered opinion that the amendment application filed by defendant no.1 could not have been allowed at such a belated stage i.e. after 9 years of the filing of the written statement. Amendment application can only be allowed if the trial court comes to the conclusion that such amendments are necessary for the purpose of determining the real questions in controversy between the parties. No such reasons have been assigned by the revisional court for allowing the amendment application of defendant no.1. Even if the proviso to Rule 17 is not applicable in the present case as the suit precedes the amendment, yet it is still a discretion of the court which has to be given in a proper case for just reasons. There is no justification for allowing the amendment application after nine years.

Consequently, writ petition is allowed. Order dated 21.04.2012 passed by the revisional court in Civil Revision No.61 of 2009 is set aside.

It is, however, made clear that the parties would be at liberty to lead evidence as to what was the actual date of construction.

The court below is directed to decide the matter as expeditiously as possible, if possible on day-to-day basis, without granting any unnecessary adjournments to either of the parties.