Jammu & Kashmir High Court - Srinagar Bench
Mohammad Rafiq Mir (Age: 42 Years) vs Mohamad Bhat on 1 September, 2023
Serial No. 122
Suppl list
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM (M) No. 84/2023
CM No. 2619/2023
Pronounced on : 01.09.2023
1. Mohammad Rafiq Mir (Age: 42 years)
2. Shabir Ahmad Mir (Age: 35 years)
3. Gulzar Ahmad Mir (Age: 31 years)
All sons of Ghulam Mohammad Mir
Residents of Bemina, District Srinagar. .. Appellant/petitioner(s)
Through: -
Mr. Nisar Ahmad Bhat, Advocate
V/s
1. Mohamad Bhat
S/o Talib Bhat,
R/o Bemina, District Budgam.
2. Mst. Zamrooda,
W/o Zahoor Ahmad Mir,
R/o Hamdania Colony, Bemina, Srinagar.
3. Mst. Zubaida
W/o Bashir Ahmad Bhat
R/o Giri Mohalla, Bemina, Srinagar.
4. Bashir Ahmad Bhat,
S/o Ghulam Mohammad Bhat,
R/o Giri Mohalla, Bemina, Srinagar.
5. Commissioner, Srinagar Municipal
Corporation, Srinagar.
6. Chief Khilafwarzi Officer, Srinagar Municipal
Corporation, Srinagar.
7. Ward Officer, W.No. 27, Srinagar Municipal
Corporation, Srinagar.
8. Chief Enforcement Officer, Srinagar
Municipal Corporation, Srinagar. ... Respondent(s)
Through: -
Mr. N.A.Beigh, Sr. Advocate with
Mr. Sofi Manzoor, Advocate.
CORAM: HON'BLE MR JUSTICE PUNEET GUPTA, JUDGE
(JUDGMENT)
1. The trial court has allowed the applicant (plaintiff No.4 in the suit) to
amend the plaint in terms of Order 6 Rule 17 CPC on the ground that
the withdrawal of co-plaintiffs from the suit has necessitated the
amendment. The court also did not agree with the private defendants
that the amendment, if allowed, shall change the nature of the suit. The
court also allowed the amendment on the ground that certain events
have taken place after the institution of the suit and pertain to
permission which has been canceled in the year 2020 and, therefore,
there is no impediment in allowing the application.
2. Learned counsel for the petitioners herein has taken the court through
the record of the case in order to impress upon the court that the
application could not have been allowed by the trial court. The counsel
has referred to the litigation which is pending between the parties and
the earlier orders passed by the courts regarding the permission which
has been granted by the Srinagar Municipal Corporation or kept in
abeyance.
3. Learned counsel appearing for the petitioners herein has submitted that
the trial court has not passed the order in accordance with law as the
reason given in the order prima facie does not fall within the parameters
of Order 6 Rule 17 CPC. The main contention raised by the petitioners
is that the trial court has by way of amendment of plaint allowed the
private respondent No.4 herein to challenge the order passed by the
Municipal Authorities against which the suit is not maintainable.
4. The respondents have appeared through counsels and argued the matter.
5. Mr. N.A.Beigh, learned Senior counsel for the private respondents has
argued that the order is perfectly valid in law and the trial court has not
acted outside its jurisdiction while allowing the application for
amendment of plaint. The submissions made by the counsel for the
petitioners could not be gone into while considering the application in
question. The trial court if satisfied that the plaint is required to be
amended, the order cannot be set aside solely on the ground that the
court has no jurisdiction to take cognizance of the amendment which
has been allowed by the court.
6. As mentioned above, the trial court has allowed the application on the
ground that the amendment, if allowed, the same will not change the
nature of the case and consequently the intervening circumstances has
prompted the plaintiff to seek amendment. The court cannot give its
final verdict in the present petition about the proceedings which are
required to be taken out in the suit by the trial court as the various
factors are required to be determined while finally deciding the suit.
The court while allowing the application for amendment is not required
to go into the legality or illegality of the circumstances on the basis of
which the amendment is sought for in the plaint. The act of the official
respondents which is sought to be challenged in the application too
cannot be determined by the court while considering the application.
The order which is sought to be made part of amended pleadings is
subject matter of the jurisdiction to be exercised by forum other than
the civil court. It may be mentioned herein that the application sought
undoubtedly mentions of the order of the Srinagar Municipal
Corporation which has been passed by the Authority after the institution
of the suit.
7. The Court finds no illegality so far as allowing this prayer of the
respondents herein is concerned and mentioned in the application. The
Courts need not give narrow interpretation to the provisions of Order 6
Rule 17 as it is well settled proposition of law that the amendment can
be sought at any time before the suit is finally decided. The merits of
the contents sought to be incorporated in the amended plaint cannot be
judged at the time of disposal of the application but can be considered
after framing of additional issue, if required.
8. The Court is of the view that the defendants are not in any manner
prejudiced the way of amendment which is sought by the private
respondents in the suit and allowed by the court. The withdrawal of the
suit by the co-plaintiffs is not to derail the rights of the remaining
plaintiff, if any, only for the reason that the other plaintiffs have opted
out of the suit.
9. In (2002) 7 SCC 559, the Hon'ble Apex Court allowed the amendment
while discussing various factors including the one that the delay in
filing the application cannot be the reason to not allow the application.
10. The Court does not find any reason to interfere in the order impugned
in the present petition. The Court in exercise of power under Article
227 of the Constitution of India does not find any reason to entertain
the present petition which is, accordingly, dismissed.
(PUNEET GUPTA)
JUDGE
SRINAGAR
01.09.2023
Pawan Chopra
Whether the Judgment is speaking : Yes/No
Whether the Judgment is reportable: Yes/No
