Puran Singh and others vs Harbansh Singh and others

Hon''ble Tarun Agarwala, J.—Heard Mr. Sharad Sharma, the learned Senior Advocate assisted by Mr. Anirudh Joshi, the learned counsel for the petitioners, Mr. Rajendra Dobhal, the learned Senior Advocate assisted by Ms. Geeta Parhiar, the learned counsel for respondent Nos. 1 to 15 and Mr. R.C. Arya, the learned Brief Holder for the State/respondent No. 16.

The plaintiffs filed a suit for injunction restraining the defendants from interfering in their possession. During the pendency of the suit, the plaintiffs filed an application under Order 6 Rule 17 of the C.P.C. contending that the defendants had raised construction on 14th June, 2004 and erected a gate. This application was rejected by the trial court on the ground that it was not physically possible for the defendants to raise the construction within two days and, therefore, presumed that the construction had been raised earlier, the trial court further held that the evidence of the plaintiffs had been closed and, therefore, it was not feasible to allow the amendment application at this belated stage.

The learned Senior Advocate for the respondents submitted that the amendment sought was only to linger on the matter and delay the proceedings and that the amendment would change the nature of the suit.

Having heard the learned counsel for the parties, the Court is of the view that there is nothing to indicate in the order of the trial court to the effect that the construction so raised was more than three years old and, therefore, such amendment was barred by limitation. The fact that the construction was raised in two days or in two months was not a issue. What could have been an issue was the fact that the construction was old and beyond the statutory period of limitation. In the absence of this finding, the court committed an error in rejecting the application for amendment of the plaint. No doubt the suit is an old one, but the law is very clear that the amendment can be allowed in the interest of justice at any stage, even if, the evidence of the plaintiff had been closed.

In the light of the aforesaid, the impugned order cannot be sustained and is quashed. The writ petition is, accordingly, allowed. The amendment application of the plaintiffs is also allowed subject to the payment of cost of Rs. 5,000/-, which shall be deposited before the trial court within four weeks from today. The amount, so deposited, can be withdrawn by the plaintiff without furnishing any security.

Certified copy of this order shall be sent by the Registry to the court below within two weeks from today for necessary information and action.

Since the suit is an old one, namely, of the year 1994, the trial court is directed to proceed with the matter on a day-to-day basis.