Jammu & Kashmir High Court
Razia Begum vs Munir Hussain Shah And Others on 6 July, 2021
Sr. No. 233
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
OW 104 No. 46/2018
IA No. 01/2018
Razia Begum
....Petitioner(s)
Through:- Mr. R.P. Sharma, Advocate
v/s
Munir Hussain Shah and others
.... Respondent(s)
Through:-Mr. B. R. Sharma, Advocate
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
1. The supervisory jurisdiction of this Court is being invoked for
quashment of the order dated 16.02.2018 ( for brevity „impugned order‟)
passed by the learned Sub-Judge, Special Mobile Magistrate, Poonch ( for
brevity „trial court‟) in case titled as Razia Begum vs. Munir Hussain Shah
and others.
2. The facts those emerge from the petition are that husband of the
petitioner herein instituted a suit titled as Lal Hussain vs. Munir Hussain Shah
and others being File No. 625/Civil before the trial court seeking decree of
declaration and a consequential relief of permanent prohibitory injunction
besides seeking setting aside of document of disinheritance deed "Aak Nama"
dated 26.10.1995 in respect of land bearing Khasra Nos. 561 (3 kanal 18
marlas ) 562 ( 4 kanals 10 marlas) 563 ( 9 kanals 15 marlas) 564 (1 kanals 19
marlas) 567 (2 kanal 11 marlas) 572 ( 6 kanals 8 marlas) situated at Dingla
Tehsil Haveli, District Poonch and land bearing khasra No. 406 measuring (1
kanal 3 marlas) 559 Aval measuring (3 kanals 3 marlas) 560 min Aval
2 OW 104 46/2018
measuring (12 kanals 18 marlas) 358 Aval measuring (6 kanals 11 marlas)
367 measuring ( 1 kanal 1 marla) 368 measuring ( 8 kanal 3 marlas, 404
measuring (18 marlas, 361 Aval measuring ( 1 kanal 11 marlas) 361 Doyam
measuring (15 maralas) 361 min Soyam measuring (1 kanal 16 marlas) 361
Charam measuring (15 marlas) situated at Nangali, Haveli, District Poonch.
3. During the pendency of the aforesaid suit an application seeking
table amendment is stated to have been filed seeking correction of Village
Dingla in the cause title, Para 2 and prayer clause of the suit instead of village
Nangali, which application is stated to have been rejected by the trial court in
terms of the impugned order.
4. The impugned order passed by the trial court is alleged to have
caused failure of justice, inasmuch as, is stated to have been passed
overlooking the law laid down by the Apex Court in case titled Rajesh Kumar
Aggarwal vs. K. K. Modi, reported in AIR 2006 SC 1647.
5. Respondents 1 and 3 in their objections controvert and resist the
petition inter alia on the grounds that the same is not maintainable inasmuch
as, that the trial court passed the impugned order rightly and correctly in
accordance with law and that the application seeking amendment filed by the
petitioner herein before the trial court has been aimed at obstructing the course
of justice and is an abuse of mandate provided under Order VI Rule 17 C.P.C.
6. Heard learned counsel for the parties and perused the
material on record.
7. A bare perusal of the record tends to show that a suit for
declaration and permanent injunction came to be filed by the
plaintiff/petitioner herein against the defendants/ respondents herein on
06.05.2005, wherein the defendants after entering appearance filed their
3 OW 104 46/2018
written statements on 31.12.2008, specifically and in explicit terms denying
therein that no land detailed out in the suit is situated in Village Dingla.
8. After farming of the issues, both the parties have led and
completed their respective evidence. Upon fixing of the case for final hearing,
by the trial court, an application for amendment has been filed by the plaintiff
/petitioner herein seeking the amendments as noticed above in para 2.
9. Law on the subject is no more res-integra that the Court may at
any stage of the proceedings allow either party to alter or amend his pleadings,
yet it cannot be ignored that such amendment could be allowed, firstly when
the suit is at its initial stage i.e., when the trial has not yet begun and secondly,
when the proposed amendment sought in the plaint does not change the nature
of the suit and thirdly, the application could not be said to have been filed by
the party belatedly.
10. Indisputably, the amendment has been sought at the fag end of
the trial of the case when the same has been fixed for final hearing and no
explanation or reason whatsoever has been spelt out in the application as to
what prevented the plaintiff/petitioner herein from seeking
amendment/correction of the name of the Village Nangali instead of village
Dingla in the plaint. Fallout of allowing of such an amendment though seems
to be innocuous yet in essence, if allowed, would revert the entire
proceedings/trial back to beginning. The amendment thus, sought in the
application could not by any sense of imagination said to be just or bonafide.
11. Law is also settled that amendment of pleading is not available as
a matter of right in all circumstances to a party.
12. The judgment referred and relied upon by learned counsel for the
petitioner is quite distinguishable and does not lend any support to the case of
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the petitioner, in that, the principle laid down qua amendments in the said
judgment as well lays down an exception that the party applying for
amendment must not be acting malafide or that by his blunder did not cause
injury to his opponent.
13. Viewed in the context what has been observed, considered and
analyzed hereinabove, the petition in hand is found to be without any merit
and is, accordingly, dismissed.
(JAVED IQBAL WANI)
JUDGE
Jammu
06.07.2021
Bir
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No.
BIR BAHADUR SINGH
2021.07.09 10:58
I am the author of this
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