Ku. Nirmala Nanda vs Smt. Santosh Nanda
2022 Latest Caselaw 6675 Chatt

                                        1

                                                                             NAFR
                   HIGH COURT OF CHHATTISGARH, BILASPUR
                            W.P. (227) No.667 of 2022
1. Ku. Nirmala Nanda D/o Nem Nanda Aged About 65 Years R/o Bastar Road,
   Ashirwad Bhawan In Front Of Charch, In Side Of Memonight Hindi School,
   Bastar Road, Dhamtari, Tahsil And District Dhamtari, Chhattisgarh
2. Ku. Anchal Arora D/o Shri Satpal Arora Aged About 21 Years R/o Bastar
   Road, Ashirwad Bhawan In Front Of Charch, In Side Of Memonight Hindi
   School, Bastar Road, Dhamtari, Tahsil And District Dhamtari, Chhattisgarh
3. Ku. Mina Nanda D/o Nem Nath Nanda Aged About 56 Years R/o Bastar
   Road, Ashirwad Bhawan In Front Of Charch, In Side Of Memonight Hindi
   School, Bastar Road, Dhamtari, Tahsil And District Dhamtari, Chhattisgarh
4. Sanjay Shringari S/o Late Dharampal Aged About 49 Years R/o Bastar Road,
   Ashirwad Bhawan In Front Of Charch, In Side Of Memonight Hindi School,
   Bastar Road, Dhamtari, Tahsil And District Dhamtari, Chhattisgarh
                                                                ---- Petitioners
                                     Versus
1. Smt. Santosh Nanda W/o Late Rajkumar Nanda Aged About 78 Years R/o
   Gulmohar Park, New Delhi.
2. Rajeev Nanda S/o Late Rajkumar Nanda Aged About 54 Years R/o Gulmohar
   Park, New Delhi.                                     ----Respondents

For Petitioners: Shri HB Agrawal, Sr. Advocate along with Shri Pankaj Agrawal and Shri Amit Tirkey, Advocates.

For Respondents:           Shri RS Patel, Advocate.


                    Hon'ble Shri Justice Deepak Kumar Tiwari
                                Order on Board
09.11.2022

1. The Petitioner has challenged the order dated 26.09.2022 passed in Civil

Suit No.281/2010 (Rajkumar Nanda vs. Nirmala Nanda & Ors) passed by the

Additional District Judge (FTC), District Dhamtari in which, the application for

amendment under Order 6 Rule 17 CPC has been allowed.

2. Shri Agrawal, learned Senior Advocate for the Petitioners/Defendants

submits that in para-29 of the judgment dated 05.07.2019 passed in F.A

No.308/2015, the trial Court was directed to decide the lis within a period of 6

months, which is as under:-

"29. Therefore, we set aside the impugned

judgment and decree and remand the matter to the Trial Court. In the result, the appeal is allowed. The impugned judgment and decree is set aside. The matter is remanded back to the Trial Court. The plaintiff shall be allowed reasonable opportunity to amend the plaint to seek appropriate relief for declaration of title. The defendants shall also be allowed reasonable opportunity to make consequential amendment in the written statement. After framing of additional issue on title, learned Trial Court shall allow both the parties to adduce additional evidence and pass judgment in accordance with law. The parties shall appear before the concerned Trial Court on 30/07/2019 and within a period of six months, learned Trial Court shall conclude the trial."

He further submits that the lis has not been decided within the said period

and the trial Court has neither prayed for extension of time to continue with the

suit nor has directed the Respondents to get the time extended for incorporating

the amendment, which was allowed by the appellate Court, therefore,

intervention of this Court is needed to set the aside the impugned order.

3. On the other hand, Shri Patel, learned Counsel for the

Respondents/Plaintiffs strongly opposes the Petition and submits that after

passing of the appellate Court's order, due to Covid situation, further extension of

time was granted vide different orders details of which are as under:-

       Sl. No. Case No.                Order dated            Direction
       1.      M.C.C No.253/2020       06.03.2020             Extended   till
                                                              16.06.2020
       2.      M.C.C. No.368/2020 07.08.2020                  Further extended for
                                                              four months
       3.      WP227/282/2020          14.07.2022             Further directed to
                                                              conclude    the trial
                                                              within 6 months
       4.      M.C.C No.495/2021       08.08.2022             Further extended for
                                                              45 days
       5.      M.C.C No.546/2022       13.10.2022             Further extended for
                                                              45 days

He further submits that in compliance of the appellate Court's order dated

05.07.2019, the amendment application was preferred on 27.08.2019 which was

duly allowed on 18.09.2019 and thereafter, the Petitioner has also filed a

consequential amendment and the issues were re-framed and the case was

proceeded for re-trial. Meanwhile, the original Counsel of the

Respondents/Plaintiffs expired due to Covid and a new Counsel has been

engaged, who found that there is a technical flaw as the valuation of the suit has

not been properly made and declaration of title which is mandatorily required

under the law has also not been pleaded, therefore, such amendment application

was preferred to fulfill the legal requirements which does not cause any prejudice

to the other side, hence, the trial Court has rightly exercised its jurisdictional

authority and allowed the amendment application, which is well merited and does

not call for any interference.

4. Heard learned Counsel for the parties and perused the entire record with

utmost circumspection.

5. It is well settled law that interest of justice must be given importance and

procedure should not out-weigh the substantive justice. In the matter of Ashok

Kumar Kalra v. Surendra Agnihotri reported in (2020) 2 SCC 394, it was held that

questions about procedural justice are remarkably persistent and usual in the life

of Common Law Courts. However, achieving a perfect procedural system may be

feasible or affordable, rather more manageable standards of meaningful

participation needs to be aspired while balancing cost, time and accuracy at the

same time.

6. In the present case, the matter was remanded for filing appropriate

amendment application giving sufficient opportunity to the parties to resolve the

lis in proper perspective and six months' time has been granted, on account of

Covid and other circumstances, which was continued to be extended from time to

time and during such pendency of the lis, the original Counsel engaged by the

Plaintiffs has expired and a new Counsel has been engaged, who found some

technical flaws in the Petition for which, he filed a fresh amendment application

for amending the valuation of the suit and also mentioned the cause of action for

declaration of title of the suit as the Respondents/Plaintiffs have stated sufficient

reasons for the delay caused and why such application was not filed with due

diligence by the earlier Counsel, therefore, proviso added vide amendment 2002

in the provision of Order 6 Rule 17 CPC has also been fulfilled when the trial

Court after having examined the scope of the amendment, properly exercised its

jurisdiction.

7. In view of above, this Court does not find any error in the impugned order

to interfere with the same invoking its writ jurisdiction.

8. Accordingly, the Petition is dismissed at the motion stage itself. Registry is

directed to send a copy of this order to the concerned Court today itself.

C.C today.

Sd/-

(Deepak Kumar Tiwari) Judge Priya