Ramesh Chand Dhakad vs Smt. Savitri Devi Chauhan

Sheel Nagu, J.—This petition under Article 227 of the Constitution of India assails the interlocutory order dated 10/05/2012 passed in Case No. 9-A/2011/Civil Suit by 2nd Additional District Judge, Gwalior whereby an application under Order 6 Rule 17 CPC preferred by the plaintiff at the stage of commencing of defendant''s witnesses, has been rejected. Learned counsel for the rival parties are heard on the question of admission.

Learned counsel for the petitioner contends that the suit for declaration of title and permanent injunction was filed on 8.7.2010. It is contended that during pendency of the suit the plaintiff was dispossessed from the suit property by the defendants on 31.01.2012 which impelled the plaintiff to move an application under Order 6 Rule 17 to implead said subsequent event which allegedly took place during pendency of the suit and for seeking consequential relief of restoration of possession. The learned counsel for the petitioner/plaintiff thus contends that looking to the amendment application based upon subsequent events, the restriction of the proviso of Order 6 Rule 17 cannot come in his way.

Learned counsel for the petitioner has placed reliance on the decision in the cases of Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, , Andhra Bank Vs. ABN Amro Bank N.V. and Others, , Mst. Rukhmabai Vs. Lala Laxminarayan and Others, , Roman Catholic Mission Diocese of Jhansi v. Smt. Lakhuram and Ors reported in 1988 RN 206

Per contra, the learned counsel for the respondent invited the attention of this court to para 65 of the cross examination of the plaintiff and submits that plaintiff has admitted handing over of possession of the suit property in 2003 itself to one Ratan Singh from whom defendant purchased the suit land. It is thus submitted by the defendant/respondent herein that the plaintiff was never in possession since the very beginning and, therefore the contention of the plaintiff of being dispossessed during pendency of the suit is untrue. In this factual ground, the learned counsel for the defendant/respondent herein lastly contends that attempt of the plaintiff to make amendment in the plaint is to fill up the lacuna in the plaint which is impermissible. Learned counsel for the respondent has placed reliance on the decision in the case of J. Samuel and Others Vs. Gattu Mahesh and Others, and in the case of Vidyabai and Others Vs. Padmalatha and Another, .

Considering the arguments of the rival parties and perusing the record, it is evident that the impugned order rejecting the application under Order 6 Rule 17 CPC of the plaintiff cannot be found fault with, for reasons infra.

The contention of the learned counsel for defendant/respondent appears to be correct that by filing amendment application attempt has been made to fill up the lacuna in the plaint of the petitioner by contending that dispossession has taken place during pendency of the suit, which does not appear to be correct.

It appears that plaintiff was dispossessed of the suit much prior to the filing of the suit and, therefore, amendment was not based on subsequent events or events which took place during pendency of the suit.

Moreover, the amendment application was moved when the plaintiff''s evidence had come to an end and the defendant''s evidence was to start. The rigors of the Proviso to Order 6 Rule 17 CPC had come into operation since the trial had commenced since long.

In view of the above, the trial Court was right in dismissing the application under Order 6 Rule 17 CPC filed by the plaintiff.

Accordingly, no jurisdictional error or illegality is found in the order of the trial Court which is accordingly upheld. Resultantly, this petition stands rejected sans cost.