Mohan Agrawal vs Rahul Gupta

Sheel Nagu, J.—This petition under Article 227 of Constitution of India against the order passed by III Civil Judge Class II, Gwalior on 23.08.2013 in case No. 27A/2013 whereby an application under Order 6 Rule 17 C.P.C. preferred by the defendant for amendment in his written statement has been rejected. Learned counsel for the rival parties are heard on the question of admission.

The Trial Court while rejecting the application under Order 6 Rule 17 C.P.C., assigned the reason that the defendant has not been able to establish that despite exercise of due diligence the subject matter of the proposed amendment was not known to the petitioner earlier and that the trial has already commenced making the proviso to Order 6 Rule 17 C.P.C. applicable.

Learned counsel for the petitioner contends that while allowing an application under Order 8 Rule 1(3) of C.P.C. of the defendant for taking documents on record, the corresponding amendment in the pleadings sought by way of application under Order 6 Rule 17 has been rejected which cannot be countenanced in law. It is further contended that both the orders of allowing application under Order 8 Rule 1(3) and rejecting application under Order 6 Rule 17 are contradictory.

Learned counsel for the respondent on the other hand supporting the impugned order, placed reliance on the decisions in case of Kanji Manji Vs. The Trustees of The Port of Bombay, , in case of Chhannu S/O Mishri Vs. Harikrishna and another reported in 1990 MPACJ 334 Para 3 and in case of Ashok Chintaman Juker and Others Vs. Kishore Pandurang Mantri and Another, to contend that when tenancy is joint, suit for eviction is very well maintainable against one of the co-tenants and therefore there is no need to implead all the co-tenants in the suit. By citing these decisions, learned counsel for the respondent urges that the amendment said to be brought in by the defendant in his written statement related to the other co-tenants and therefore was rightly rejected in view of one of the co-tenants having been impleaded as defendant.

The trial Court has dismissed the application under Order 6 Rule 17 on dual grounds. The first being that the said proposed amendment is not relevant and thus not necessary. Secondly the defendant has failed to establish that despite exercise of "due diligence", the defendant could not raise the said matter before the commencement of trial. The trial Court found that defendant being ignorant about the earlier suit is not acceptable since the defendant himself was a party in the said suit and therefore the Court rightly held that the defendant failed to establish that he did not know about the factum of the earlier suit, prior to commencing of the present suit. The trial Court has also found that the subject matter of the amendment was inconsequential to the issue involved here as mentioned above and the proviso of Order 6 Rule 17 has come into operation making the task difficult for the petitioner.

The view taken by the Trial Court cannot be said to be so unreasonable so as to fall within the parameters of transgression of jurisdictional limit. Merely because a different view is possible in the attending facts and circumstances cannot alone be a ground for interference under Article 227 of Constitution of India. Accordingly no case for interference in the present petition is made out which accordingly stands dismissed sans cost.