Satya Devi vs Jagir Singh And Others

Ajay Mohan Goel, J

By way of this petition filed under Article 227 of the Constitution of India, the petitioner/plaintiff has challenged order dated 24.07.2019, passed by the Court of learned Civil Judge, Court No. 2, Amb, District Una, H.P. whereby an application filed under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure for amendment of the plaint by the petitioner herein stands dismissed.

A perusal of the application which was filed under Order 6, Rule 17 of the Code of Civil Procedure praying for amendment of the plaint demonstrates that the same was preferred by the plaintiff on 28.05.2018. The reasons mentioned in the application as to what necessitated the amendment were that in the month of June, 2015, defendants No. 1 to 4 had encroached upon some part of the suit land. According to the plaintiff, she applied for demarcation which was conducted by the revenue authorities on 16.7.2015 in the presence of the parties and said demarcation demonstrated that a part of the suit land stood encroached by the defendants, and in this regard, plaintiff had also filed a criminal case against defendants No. 1 to 4. In this background, the plaintiff had prayed that she wanted to amend the plaint praying for a decree of vacant possession of the encroached land by further carrying out necessary amendment in the plaint to this effect.

The application was opposed by the defendants INTER ALIA on the ground that the demarcation was a result of connivance between the plaintiff as well as revenue authorities and police and the investigation which stood carried out by the Collector had demonstrated that the report was incorrect.

Learned Trial Court vide order dated 24.07.2019, dismissed the application INTER ALIA by holding that the allegations of encroachment pertained to the month of June 2015 whereas the application was filed in May, 2018, without any reasons being spelled out in the same as to why the same was filed after three years and as the case was old and targetted one and same otherwise was being listed for arguments since January, 2015, hearing whereof was delayed as a result of one after another application being filed by the plaintiff, the application had no merit.

I have heard learned Counsel for the parties and have gone through the impugned order as well as other documents appended with the petition.

During the course of arguments, this Court has been informed that an application was filed under Order 26, Rule 9 of the Code of Civil Procedure by the plaintiff, which stood dismissed by the learned Court below and the order passed in the same was assailed by the plaintiff before this Court by way of CMPMO No. 248 of 2015, in which, proceedings in the civil suit stood stayed. This petition was dismissed by this Court on 27.03.2017.

As I have already mentioned above, the application which has been filed by the plaintiff under Order 6, Rule 17 of the Code of Civil Procedure praying for amendment in the plaint was filed on 28.05.2018. The amendment sought by the plaintiff was INTER ALIA on the ground that during the pendency of the suit, a portion thereof stood encroached upon by the defendants, which stood proved from the demarcation got conducted from the revenue authorities in the presence of parties.

In my considered view, that being the case, the amendment which was being sought by the plaintiff, ought to have had been allowed by the learned Trial Court especially keeping in view the fact that there was a stay operating against the proceeding filed before the learned Trial Court in CMPMO No. 248 of 2015, which petition was ultimately decided by this Court on 27.03.2017. Defendants could have been compensated by levying cost upon the plaintiff, but simply because the civil suit stood filed in the year 2009 and it was an old and targetted case, this in the peculiar facts of this case, was not a cogent reason for disallowing the application. It is not in dispute that the purported cause on the basis of which plaintiff intended to incorporate the amendment in the civil suit had arisen during the pendency of the suit. Learned trial Court in these circumstances erred in not appreciating that not allowing the amendment is likely to lead to multiplicity of litigation which was easily avoidable by permitting the plaintiff to amend the pleadings.

Accordingly, this petition is allowed by setting aside order dated 24.07.2019, passed by learned Civil Judge, Court No. 2, Amb, District Una, H.P, by ordering that the application which stood filed under Order 6, Rule 17 of the Code of Civil Procedure by the plaintiff is allowed and the plaintiff is permitted to incorporate necessary amendment in the plaint. This however will be subject to payment of cost of Rs. 25,000/- to the defendants by the plaintiff, which cost will be paid by the plaintiff proportionately to all the defendants by way of bank drafts in their favour on the next date of hearing. It is clarified that in the event of the cost being paid by the plaintiff, the amended plaint shall be taken on record and if plaintiff fails to pay the cost for any reason, then, learned Trial Court shall not grant any extension to her in this regard and the relief which stands granted to the petitioner/plaintiff by way of this order shall automatically cease to operate. Interim order, if any, stands vacated. Parties through Counsel are directed to appear before the learned Trial Court on 24.08.2020, on which date itself, cost shall be paid by the petitioner to the defendants as directed above. Pending miscellaneous application(s), if any, also stand disposed of accordingly.