Nagar Palika Dadri vs Trilok Chand & Ors.

Vineet Saran, J.

PlaintiffRespondent Nos. 1 to 5 filed suit No. 259 of 1995 before Civil Judge (Senior Division), Ghaziabad on 2821995 praying for a decree of permanent prohibitory injunction restraining the petitioner, Nagar Palika Dadri as well as Respondent No. 6, Nagar Parishad Karmchari Mahasangh, Dadri from taking possession over the land in dispute and not to interfere in the peaceful possession of the plaintiffs over the said property.

The dispute arose when on 521995 a foundation stone was laid by the then M.L.A. of the area inaugurating Nagar Parishad Karmchari Avas Colony over 2 Bighas of land which the plaintiffs respondents No. 1 to 5 claim that they had purchased on 1651983 from its owner Jeevan Lal, in whose favour the land was duly recorded by the order of the competent authority (Deputy Director of Consolidation) passed on 761961. An ex parte injunction order was granted in favour of the Plaintiff respondent Nos. 1 to 5, which was thereafter confirmed on 165 1995. However, against the said injunction order the petitioner, as well as Respondent No. 6 filed Misc. Appeal No. 100 of 1995 which was allowed on 631997 and the order dated 1651995 was set aside. Aggrieved by the same the Respondent Nos. 1 to 5 filed writ petition No. 9567 of 1997 before this Hon''ble Court which was disposed of on 751997 with the direction that the constructions, if any, made by the petitioner and respondents No. 6 shall be at their own risk and subject to the decision of the suit. Since certain constructions had been made on the plot in dispute, the plaintiffrespondent Nos. 1 to 5 got their plaint amended and added the prayer for demolition of the constructions raised by the petitioner and respondents No. 6 and to restore the land in its original condition at the cost of the said parties. After the said amendment had been allowed, the petitioner and respondent No. 6 filed a joint written statement on 1891997 in which it was claimed that the land belonged to the Land Management Committee, Dadri and thereafter vested in the petitioner, Nagar Palika Dadri and had been allotted to its employees vide resolution dated 5121991. On 2111998 the issue No. 7 regarding nonjoinder of parties (individual members of the Association who had been allotted the plots) had been decided in favour of the plaintiffsrespondents No. 1 to 5 on the ground that the employee''s association (whose members had been allotted the land), was already a party. On 1392002 the hearing of suit No. 259 of 1995 was concluded and 2492002 was fixed for delivery of the judgment. However, on 2492002 the case was again fixed for rehearing on certain issues.

It was at this stage of rehearing that on 1312003 the petitioner filed an application under Order VI Rule 17 C.P.C. (paper No. 203 Ka) to amend the written statement and to incorporate the plea that according to the plaint allegations the Plaintiffrespondent Nos. 1 to 5 purchased the land from Jeevan Lal on the basis of the order dated 761961 passed by the Deputy Director of Consolidation, the said order dated 781961 had become void in view of the Notification dated 1571980 passed by the State of U.P. by which all the consolidation proceedings were directed to be started again. The plaintiffrespondent Nos. 1 to 5 filed their objections and prayed for rejection of the application for amendment of the written statement. By order dated 1022003 passed by the trial Court, the amendment application of the petitioner has been rejected. Aggrieved by the said order the petitioner has filed this writ petition.

I have heard Sri Y.K. Sinha, learned Counsel for the petitioner as well as Sri Rajiv Gupta, learned Counsel appearing for the contesting respondent Nos. 1 to 5. Counter and rejoinder affidavits have been exchanged and with the consent of the learned Counsel for the parties, this writ petition is being finally disposed of at the admission stage itself.

For proper appraisal of this case, the provisions of Rule 17 of Order VI C.P.C. are required to be considered, which are being quoted below:

�(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 purposes 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.�

The contention of the learned Counsel for the petitioner is that as per the aforesaid provision, the amendment of the pleadings can be made at any stage of the proceeding. The submission is that the written statement having been filed by the petitioner in the year 1995, the proviso which has been added to the aforesaid Rule 17 by the Code of Civil Procedure (Amendment) Act, 2002 (for short the ''Amending Act, 2002'') would not be applicable by virtue of Section 16(2)(b) of the Amending Act, 2002. The said Section 16(2)(b) of the Amendment Act, 2002 which reads as under:

�(b) the provisions of Rule 5, 15, 17and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;�

The submission is that since the written statement of the petitioner had been filed in the year 1995 and the proviso to Rule 17 having been added by the Amendment Act, 2002 (with effect from 172002), would not be applicable in the case of the petitioner. As such it has been urged that since the pleading can be amended at any stage of the proceeding, for determining the real question in controversy between the parties, the application seeking amendment in the written statement ought to have been allowed as it goes to the root of the case and would be necessary for determining the real question in controversy in the present case.

On the other hand Sri Rajiv Gupta, learned Counsel for the contesting respondent Nos. 1 to 5, has submitted that since the application seeking amendment in the written statement has been filed on 1312003, which is after coming into force of the Amending Act, 2002 (which was with effect from 172002), the said proviso would thus be applicable in the present case also. In the alternative, it has been submitted that the application of the petitioner has been rejected by the trial Court on merits without even taking into consideration the amended provisions of the Code of Civil Procedure and it was only in the end that it was observed by the trial Court that because of the proviso to Rule 17 having been added by the Amending Act, 2002 also, the application deserves to be rejected. It has further been submitted that the petitioner is only trying to delay the decision of the suit and the filing of the application seeking amendment at such a belated stage is nothing but misuse of the process of law and only to frustrate the purpose of the suit.

The amendment sought in the written statement by the petitioner is with regard to certain Notification of the State Government which had been issued in the year 1980. It is not the case of the petitioner that the said Notification was not available at the time of filing of the initial written statement in the year 1995 or thereafter when the additional written statement was filed in 1997. No explanation whatsoever has been given by the petitioner as to why they had not taken such plea at the time of filing of the written statement. The application for incorporating such plea has now been made in the year 2003, after the suit had been heard on merits on 1392002 and the judgment had been reserved. ''At any stage of the proceeding'' occurring in Rule 17 of Order VI of the Code of Civil Procedure would not mean to allow a party to keep getting the pleadings amended and adding fresh pleas in the written statement or the plaint at his own whims and fancies, thereby causing delay in the decision of the suit. No doubt the Court has the power to permit amendment of pleading at any stage but the said power has to be exercised in judicious manner and not arbitrarily. It cannot be said that the petitioner did not have knowledge of the issuance of the Notification of the State Government in the year 1980. In 1995 when the initial written statement had been filed, there was no mention of such a plea. Thereafter again in the year 1997, when the additional written statement had been filed, the petitioner did not raise any such plea. The reason for the petitioner filing such application in the year 2003 after the suit had earlier in September, 2002 been finally heard by the trial Court, is clearly for delaying the decision of the suit. This is nothing but misuse of the process of law and the trial Court is not wrong in stating that the same is only a delaying tactics.

Even otherwise, the amendment having been made in Rule 17 of Order VI of the Code of Civil Procedure by the Amending Act, 2002 by adding the proviso is only with regard to the procedural aspect. The proviso adds nothing but what has already been there in practice, that the application seeking amendment in the pleading should not be allowed unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised such an issue before commencement of the trial. As such although, in my view, since the application seeking the amendment has been filed after coming into force of the Amending Act, 2002, the said provision would be applicable and the petitioner has to prove his case within the ambit of the proviso to Rule 17 of Order VI of the Code of Civil Procedure but even if the said proviso is not taken into account, then too, the application of the petitioner deserves to be dismissed on merits and has rightly been done so by the trial Court.

For the foregoing reasons, no interference is called for with the impugned order dated 1022003. This writ petition is, accordingly, dismissed. No order as to cost.

Before parting with this case, it may be observed that since the suit has been pending for over a decade and had already been finally heard and the judgment was reserved in September, 2002 but thereafter it was again posted for rehearing, it would be desirable that the trial Court decides the suit as expeditiously as possible, preferably within a period of three months from the date of filing of a certified copy of this order before it, without granting any unnecessary adjournment to either of the parties.