Smt. Anu Devi vs Smt. Meera Devi
2022 Latest Caselaw 4199 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2787/2022

Smt. Anu Devi W/o Late Shri Prakash Ji, Aged About 61 Years, Caste Harijan, Resident Of Godo Ka Chowk, Harijan Basti, Jodhpur (Rajasthan).

----Petitioner Versus

1. Smt. Meera Devi W/o Late Shri Vinod Kumar, Caste Harijan, Resident Of Godo Ka Chowk, Harijan Basti, Jodhpur (Rajasthan).

2. Smt. Shanti W/o Shri Sanjay Berwal, Caste Harijan, Resident Of Near Geeta Bhawan, Nawal Harijan Basti Jodhpur (Rajasthan).

----Respondents

For Petitioner(s) : Mr Kuldeep Singh Rathore For Respondent(s) : Mr Jitendra Singh Chopra

HON'BLE MR. JUSTICE VIJAY BISHNOI

Judgment / Order

16/03/2022

This writ petition is filed by the petitioner being

aggrieved with the order dated 13.01.2022 passed by the

Additional Sessions Judge No.7, Jodhpur Metro (hereinafter to be

referred as 'the trial court'), whereby the application preferred by

the petitioner under Order 6 Rule 17 read with Section 151 CPC in

Original Suit No.46/2019 has been dismissed.

Brief facts of the case are that the petitioner preferred

a suit for partition and permanent injunction before the trial court

in respect of four properties, description of which is given in para

3 of the plaint. The said suit was filed on 04.11.2015 and after

service of summon, the defendant-respondents submitted their

(2 of 5) [CW-2787/2022]

written statements and counter-claim on 12.12.2015. Reply to the

counter-claim was filed on behalf of the petitioner on 30.05.2016

and the trial court framed issues on 23.11.2016.

The petitioner along with one other person gave her

evidence and the evidence of the defendants have also been

completed on 14.02.2020 and the matter was fixed for final

hearing . From 09.07.2020 to 30.01.2021, the counsel for the

petitioner took 10 adjournments to argue the matter finally.

Thereafter on 06.02.2021, an application was preferred on behalf

of the petitioner under Order 26 Rule 10A read with Section 45 of

the Indian Evidence Act, which came to be dismissed by the trial

court on 06.03.2021 and again the matter was fixed for final

hearing. In between 17.03.2021 to 17.12.2021, on seven

occasions, the counsel for the petitioner sought time to argue the

matter finally, however, ultimately on 21.12.2021, the petitioner

preferred an application under Order 6 Rule 17 read with Section

151 CPC with a prayer to allow her to amend the suit.

By way of the aforesaid application, the petitioner

claimed that apart from the four properties, description of which is

mentioned in para 3 of the plaint, one more immovable property is

there and for the said property also, decree of partition is

required, therefore, she may be allowed to amend her plaint so as

to include the 5th property also. She also prayed that description

of neighbours regarding one of the properties has wrongly been

given, therefore, she may be allowed to furnish correct description

of the negibhours.

The trial court after hearing counsel for the parties has

rejected the application filed by the petitioner under Order 6 Rule

17 read with Section 151 CPC vide impugned order and refused to

(3 of 5) [CW-2787/2022]

grant permission to the petitioner to amend her plaint, however,

allowed the prayer of the petitioner to get the description of the

neighbours corrected in respect of one of the properties.

Learned counsel for the petitioner has submitted that

the petitioner is an illiterate old aged lady and recently she came

to know about the existence of 5 th property and immediately after

knowing the said fact, she moved an application with a prayer to

allow her to amend her plaint so as to include the 5th property.

It is submitted that the trial court without considering

the above aspect has illegally refused to allow the petitioner to

amend the plaint so as to include 5 th property. It is also submitted

that the trial court has not taken into consideration the fact that

by the said amendment no prejudice can be said to have been

caused to the defendants and the nature of the suit is also not

going to be changed.

Before the trial court, the petitioner had placed reliance

on a decision of Hon'ble Supreme Court in Mohinder Kumar Mehra

vs. Roop Rani Mehra & Ors., AIR 2017 SC 5822 and on a decision

of Allahabad High Court rendered in Ganesh vs. Sri Ram Lalji

Mahraj Birajman Mandir and Ors., AIR 1973 Allahabad 116.

Learned counsel for the petitioner has placed reliance on these

two decisions before this court also.

Learned counsel for the petitioner has, therefore,

prayed that the impugned order may kindly be set aside and the

application filed on behalf of the petitioner under Order 6 Rule 17

read with Section 151 CPC before the trial court may kindly be

ordered to be allowed.

                                            (4 of 5)                  [CW-2787/2022]



             Per   contra,     learned        counsel        appearing    for   the

defendants has submitted that there is no illegality in the

impugned order and, therefore, no interference is called for.

Having heard learned counsel for the parties and

perused the material available on record, I am of the opinion that

the trial court has not committed any illegality in passing the

impugned order.

It is to be noticed that the suit was filed by the

petitioner on 04.11.2015 and immediately thereafter the

defendants submitted their written statements along with counter-

claim. It is also to be noticed that in their written statements, the

defendants have specifically pointed out in para 3 of the plaint

that though the petitioner has claimed that there are total five

immovable properties but she has given the description of only

four properties. It is also to be noticed that despite this specific

objection raised by the defendants in their written statements, the

petitioner has not provided any description about the said so

called 5th immovable property.

The evidence of the parties were completed on

14.02.2020 and thereafter the counsel for the petitioner sought

adjournments for final hearing before the trial court for about 21

dates from 09.07.2020 to 17.12.2021 but never sought any

amendment in the plaint. The petitioner also moved an application

in February, 2021 for appointment of a Commissioner but at that

time also she did not pray for amendment in the plaint. For the

first time the petitioner filed an application seeking amendment in

the plaint on 21.12.2021. Though in the application under Order

6 Rule 17 read with Section 151 CPC, the petitioner has claimed

that she came to know about the existence of 5 th property recently

(5 of 5) [CW-2787/2022]

but has failed to give any details that as to when and from whom

she came to know about the existence of the 5th property.

It is also to be noticed that the so called 5 th property is

in the name of her son and not in the name of his husband,

whereas the petitioner has filed the suit for partition in respect of

the four immovable properties claiming that the same properties

were in the name of her husband only.

Looking to the above facts and circumstances of the

case, I am of the view that the trial court has rightly observed

that the petitioner has filed the application seeking amendment in

the plaint only with intention to delay the proceedings.

Resultantly, I do not find any merit in this writ petition

and the same is hereby dismissed.

Stay petition also stands dismissed.

There will be no order as to cost.

(VIJAY BISHNOI),J

10-masif/-PS

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