Shri Hari Chand (Since Deceased ... vs Chameli Devi (Since Deceased ...
2011 Latest Caselaw 1830 Del

Citation : 2011 Latest Caselaw 1830 Del
Judgement Date : 29 March, 2011

Delhi High Court

Shri Hari Chand (Since Deceased ... vs Chameli Devi (Since Deceased ... on 29 March, 2011

Author: Indermeet Kaur

R-181
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment: 29.03.2011


+                   RSA No.52/2005



SHRI HARI        CHAND (SINCE DECEASED THROUGH LEGAL
HEIRS)                                      ...........Appellant
                       Through: Mr. Hameed S. Shaikh and Mr.
                            Amar Pal, Advocates.

                    Versus

CHAMELI DEVI (SINCE DECEASED THROUGH LEGAL
HEIR)                             ..........Respondent.
                  Through: Mr.S.K. Bhalla, Advocate

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

      1. Whether the Reporters of local papers may be allowed to
         see the judgment?

      2. To be referred to the Reporter or not?                 Yes

      3. Whether the judgment should be reported in the Digest?
                                                           Yes



INDERMEET KAUR, J. (Oral)

1 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.

2 Trial Judge had framed eight issues. It had returned a

categorical finding on each of the aforenoted 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 Code of Civil Procedure (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.

3 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.

4 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?"

5 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:-

"17. 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."

6 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.

7 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