Smt.Bharti alias Bhoori vs State of M.P.

Rohit Arya, J.—Petitioner/plaintiff taking exception to the order dated 16.12.2014 passed by the trial court, has approached this court with the grievance that by the impugned order, the petitioner has been subjected to the double jeopardy, as much as, not only the petitioner''s application for amendment under Order 6, Rule 17 of CPC is dismissed but the right to lead evidence has also been closed.

It is contended that the suit for declaration and injunction is pending consideration. During pendency of the suit due to the subsequent event in the contest of breaking the wall and the stairs leading to the passage towards the plaintiff''s house, defendants have raised an iron gate and thereby have taken possession of the suit site. Therefore, an amendment application was filed seeking leave of the court to incorporate the alleged incident as well as the relief of recovery of possession.

The said application has been rejected on the premise that the suit though is of the year 2014 and as many as 15 opportunities have been afforded to the petitioner/plaintiff to lead evidence but instead of leading evidence, plaintiff has moved an application for amendment, therefore, the amendment has been found to be lacking in bona fide and therefore, commenting upon the conduct of the petitioner/plaintiff, the impugned order has been passed.

Shri Jain, learned counsel for the petitioner contends that if the order sheets referred in the impugned order are perused, it is evident that on most of the dates miscellaneous applications were filed by either parties and hearing of the case was adjourned. However, it is pertinent to mention that on 27.10.2014, 14.11.2014 and 1.12.2014, the evidence was led by the plaintiff and therefore it is incorrect to say that despite case being fixed for evidence, adjournment was sought.

Shri Prashant Sharma, learned counsel for the respondents No.1 and 2 contends that the aforesaid averment is based on fabricated facts. Defendants have always been in possession of the suit property. There is no alleged incident as stated in the averments. Now the petitioner seeks to change the nature of the suit by incorporating the relief of recovery of possession in a suit for declaration and injunction, hence, neither the amendment can be allowed nor the petitioner can be extended the liberty to lead the evidence.

Heard.

Upon perusal of the order sheets placed on record, there appears to be substance in the submission advanced by the learned counsel for the petitioner/plaintiff that it is not correct position that since 2.9.12 till 15.12.2014, the petitioner has all along been granted time to lead evidence. On number of dates, the case was posted for hearing of miscellaneous applications filed on different dates. That apart, on 27.10.2014, 14.11.2014 and 1.12.2014, the plaintiff has led the evidence, therefore, the observation in the impugned order that the petitioner avoided to lead evidence on 15 occasions is not found to be in consonance with the record.

True it is, that the suit is of the year 2012 and therefore the same should be decided within five years but at the same time, trial court is also required to bear in mind that the course of justice can not be impeded only for the aforesaid reason as depending upon the facts and circumstances of each case the trial court is required to ensure that the parties of the suit are not put to prejudice, as ultimate purpose of trial of suit is to ensure substantial justice between the parries. In the instant case, not only the amendment application has been dismissed but also the right to lead evidence has been closed. Upon perusal of the amendment application, neither this court nor the trial court can ponder over the merits of the amendment and is required to see only the relevancy of the amendment to the controversy involved in the suit. This court finds that the amendment proposed in no way can be said to be out of context or not relevant to the issues involved in the suit between the parties, however, defendants shall be extended due liberty to amend the written statement.

Consequently, the writ petition is allowed. The impugned order is set aside and the trial court is directed to reconsider the amendment application afresh with due opportunity to the defendants and thereafter proceed with the trial affording opportunity to the petitioner to lead evidence subject to cost of Rs.5000/- payable to the respondents No.1 and 2.

The suit is of the year 2012, therefore, the trial court shall ensure that the suit is decided within seven months. It is made clear that the plaintiff shall neither ask for adjournment nor be granted adjournment to lead evidence and the trial court shall proceed with the suit strictly according to the schedule fixed by the trial court.