Mohd Afzal vs Sudhir Kumar

Alok Aradhe, J.—With consent of the parties, the matter is heard finally.

In this writ petition under Article 227 of the Constitution of India, the petitioners have assailed the validity of the order dated 27.11.2014 by which the trial Court has rejected the application for amendment of the plaint filed by the petitioners.

I have heard learned counsel for the parties and have perused the record. From perusal of the record, it is evident that the petitioners had filed the suit seeking the relief of perpetual injunction against the respondent restraining him from interfering on the property of the plaintiffs by demolishing the partition wall. During the pendency of the suit, the petitioners filed an application for amendment of the plaint on the basis of subsequent events inter-alia on the ground that the partition wall has already been demolished and in its place, a new construction has been raised. The trial Court has rejected the application inter-alia on the ground that the aforesaid fact was not disclosed at the time of consideration of the application for temporary injunction.

Admittedly, in the suit, the evidence is yet to be recorded. From the record, it is evident that the proposed amendment was necessary for a fair and complete adjudication of the controversy involved in the suit. It is well settled in law that an application for amendment cannot be rejected merely on the ground of delay. See: Revajeetu Builders and Developers v. Narayanaswamy and sons and others, (2009) 10 SCC 84 and Surender Kumar Sharma v. Makhan Singh (2009) 10 SCC 626. In Rajkumar Gurawara v. S.K. Sarwagi and Company Private Limited and another, 2008 (14) SCC 364, it has been held that amendment which is proper amendment can be introduced at any stage for the purpose of determining the controversy involved in the suit. It is equally well settled in law that the merit of amendment cannot be looked into at the stage of consideration of application under Order 6, Rule 17 of the Code of Civil Procedure.

The impugned order suffers from the error apparent on the face of record. Accordingly, it is quashed. The application under Order 6, Rule 17 of the C.P.C., preferred by the petitioners, is allowed.

Let a copy of this order be sent to the trial Court by Fax.

Accordingly, the writ petition is disposed of.

C.C. as per rules.