Shri Hari Chand (since deceased through legal heirs) vs Chameli Devi (since deceased through legal heir)

Indermeet Kaur, J.—This appeal has impugned the judgment and decree dated 01.11.2004 which had reversed the findings of the trial Judge dated 03.02.1997. Vide judgment and decree dated 03.02.1997, the suit for permanent injunction filed by Chameli Devi had been dismissed. The impugned judgment had decreed the suit.

Trial Judge had framed eight issues. It had returned a categorical finding on each of the affronted issues. Suit stood dismissed. In appeal, the first appellate court had reversed this finding. Before the first appellate court, an application under Order 6 Rule 17 of the CPC (hereinafter referred to as the "Code) had been filed. The said application had been allowed on 24.09.2003; the Plaintiff had been granted opportunity to amend his plaint. Admittedly no opportunity had been granted to the Defendant to file written statement to the amended plaint.

The impugned judgment is dated 01.11.2004. Perusal of the same shows that it has only discussed the application made by the Plaintiff before the first appellate court for amending his plaint; it had recorded that this amendment has not changed the nature of the case. There is no discussion whatsoever on the issues which had been framed by the trial court. The impugned judgment had reversed the finding of the trial court yet there is not a whisper let alone a discussion on the issues framed by the trial court. Before reversing the finding of the trial court, it was incumbent and bounden duty of the first appellate court to have reappreciated the entire evidence both oral and documentary to have come to the different finding on fact and law. It has abdicated itself from this duty. This is clearly an illegality.

This is a second appeal. It had been admitted and on 20.11.2008, the following substantial question of law has been formulated:

Whether the first appellate court has rightly allowed the application under Order 6 Rule 17 CPC moved by the Respondent to amend the plaint after six years of the dismissal of the suit by the Trial court, despite the fact that the trial court had specifically drawn the attention of the trial court had the possibility of amending his pleadings, if he so desired, and that despite this, the Respondent wished to proceed with the suit before the trial court a it was originally framed?

Substantial question of law relates to the delay on the part of the Plaintiff in preferring his application for amendment before the first appellate Court. Learned Counsel for the Appellant has drawn the attention of the court to the judgment of the trial court wherein it has been noted in para 13 that the opportunity had been granted to the Plaintiff to rectify his pleadings if he so deemed but he had chosen not to do so. Attention has also been drawn to the provisions of under Order 6 Rule 17 of the Code which read as under:

Amendment of pleadings.- the Court may at any stage of the proceeding 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 purpose 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 inspite of due diligence, the party could not have raised the matter before commencement of trial.

It is pointed out that the proviso clearly stipulates that no application for amendment will be allowed after the trial has commenced unless the Court comes to a conclusion that inspite of due diligence, the party could not have raised this matter before commencement of trial. It is pointed out that there was no "due diligence" on the part of the Plaintiff. The trial court itself had recorded that opportunity had been granted to the Plaintiff to rectify his pleadings but he had chosen not to do so. It is pointed out that the order allowing the application seeking amendment is also liable to be set aside.

Be that as it may, this is a fit case where the matter be remanded back to the first appellate court for reappreciation of the case both on facts and on law and to pass a reasoned and speaking order. The first appellate court will also consider as to whether any opportunity to file amended written statement to the amended plaint should be granted or not.

For this purpose, the parties shall appear before the District & Session Judge on 04.04.2011 at 10:00 AM who will assign the case to the concerned first appellate court. The first appellate court shall make Endeavour to dispose of the case within a period of 10 months from today.

With these directions, the appeal is disposed of.