Piyush Bhushan Sharma & Anr. @APPELLANT@Hash Mahesh Kumar Sharma & Ors.

The present writ petition is directed against the order dated 11.07.2018 passed by the learned Additional District Judge No.3, Bikaner (hereinafter

referred to as the ‘Trial Court’) rejecting petitioner’s application under Order VI Rule 17 of the Code of Civil Procedure, 1908.

Shorn of unnecessary details, the precise facts relevant for the present purposes are that the plaintiff â€" respondent No.1 filed a suit for partition,

wherein the defendant â€" petitioner herein had filed the written statement in the year 2013. After filing the written statement, the issues had been

framed on 26.11.2013. Thereafter plaintiff completed his evidence; and when the matter was pending for defendant’s evidence, the petitioner filed

an application on 10.08.2015, under Order VI Rule 17 of the Code of Civil Procedure, 1908 seeking amendment in the written statement inter alia,

alleging that there were certain more properties of the common ancestors, which were required to be considered in the present suit for partition.

Petitioner stated that particulars of such properties have not been brought on record by either of the parties, which would cause serious prejudice to

their rights.

The application seeking amendment was opposed by the plaintiff by way of filing a reply.

Learned Trial Court after considering the application and arguments advanced by the rival parties rejected the subject application, inter alia holding

that the amendment as prayed for cannot be granted, as the trial had commenced, in light of proviso to Order VI Rule 17 of the Code of Civil

Procedure.

Mr. J.K Bhaiya, learned counsel for the petitioner submitted that the Trial Court has erred in rejecting petitioner’s amendment application in light

of proviso to Order VI Rule 17 of the Code of Civil Procedure. He argued that proviso to Order VI Rule 17 of the Code of Civil Procedure does not

create a complete embargo on the Court’s power to allow amendment in the pleadings.

In support of his arguments, Mr. Bhaiya relied upon judgment of this Court reported in 2016(3) DNJ 1106 in the matter of Chandra Prakash Agarwal

Vs. Ridhkaran parasrampuria & Ors., and contended that in light of the aforesaid judgment, the amendment in the written statement deserves to be

allowed in the case at hands also.

I have gone through the judgment relied upon by Mr. Bhaiya and given my thoughtful consideration over the factual matrix of the instant case.

It is settled proposition of law that the judgments of Courts cannot be read as statute and facts of each case have to be considered in juxtaposition

with the facts of the case under consideration. A bare look at para 10 of the judgment of Chandra Prakash Agarwal (supra) shows that the petitioner

in the said case had specifically pleaded that the factum of the land acquired by National Highway had come to his notice, just before filing of the

application under Order VI Rule 17 of the Code and therefore, considering that there was no delay and laxity, this Court allowed the writ petition and

permitted amendment to be carried out. As against this, the facts in the present case are entirely different. The petitioners had filed their written

statement way back in 2013 and after 5 years have sought to include more/additional properties allegedly left out of partition. The petitioners being

immediate descendants cannot claim ignorance of the properties of their parents.

Mr. Bhaiya made a passing reference of the judgment reported in 2014 (1) ACJ 201 (SC); Prithipal Singh Vs. Amrik Singh, which had been cited

before the Trial Court.

It is matter of great concern that learned counsel has not placed the aforesaid judgment for perusal of the Court and simply reiterated the judgment

which has been reproduced in the impugned order. It was required of the learned counsel to bring at least those judgments, which have been referred

to and relied upon by none other than the petitioners themselves in the Trial Court.

Be that as it may, this Court having perused the judgment finds that the same hardly has any bearing in the facts of the present case, as it simply lays

down that amendment relates back to the institution of the suit.

Mr. Bhaiya has relied upon another judgment, namely 2010 (1) CCC 446 (SC), more particularly para 15 thereof to lend support to his arguments.

Perusal of said judgment shows that in the case before Hon’ble Supreme Court, the stage of the suit was different and at the time of filing

amendment application, evidence had not started, for which Hon’ble Supreme Court was pleased to allow the amendment application, as is evident

from perusal of the para 16 of the judgment, which is reproduced hereinfra :-

“16. In view of the aforesaid decision and in view of the admitted fact that not even the issues have yet been framed, documents have not yet been

filed, evidence has not yet been adduced, we are of the view that the proviso to Order 6 Rule 17 of the CPC has no manner of application as the trial

has not yet commenced.â€​

As an upshot of the aforesaid discussion, this Court is of the considered opinion that the amendment as prayed for by the petitioner was clearly

impermissible by virtue of proviso to Order VI Rule 17 of the Code of Civil Procedure as trial in the subject suit had commenced.

If the amendment as prayed for by the petitioners is allowed, it would not only change the scope of the suit in its entirety, but would also lead to its

denovo trial.

This Court does not find any error in the impugned order dated 11.07.2018 passed by the trial court, requiring its interference in the supervisory

jurisdiction.

Writ petition, thus, fails.