Rajasthan High Court - Jodhpur

Sri Kant Rajpurohit vs Bharat Petroleum Corporation ... on 15 September, 2022

Bench: Vinit Kumar Mathur

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 9706/2022

Sri Kant Rajpurohit S/o Shri Mohan Lal Ji, Aged About 65 Years, B/c Rajpurohit, R/o Nokha District Bikaner (Rajasthan).

----Petitioner Versus

1. Bharat Petroleum Corporation Limited, E.C.E. House Cannaught Circus P.B. No. 7, New Delhi.

2. Auto Centre Nokha, Through Partner Shri Jaichand Lal Betala S/o Ugam Chand Betala R/o Jain Chowk, Nokha, District Bikaner.

                                                                    ----Respondents


For Petitioner(s)           :     Mr. D. D. Chitlangi
For Respondent(s)           :     Mr. Vinay Kothari, for Respondent
                                  No.1
                                  Mr. Rajeev Purohit


           HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
                            Order

15/09/2022

      Heard learned counsel for the parties.

The present writ petition has been filed against the order

dated 22.04.2022 passed by the learned Civil Judge, Nokha,

District Bikaner, whereby the application preferred by the

petitioner under Order 6 Rule 17 read with Section 151 C.P.C. has

been rejected.

Learned counsel for the petitioner submits that the petitioner

has preferred a suit for eviction of the respondents from the

property in question. Learned counsel submits that in the suit

proceedings, the issues have been framed and after framing the

issues, an application under Order 6 Rule 17 CPC has been

preferred for amendment in the plaint. Learned counsel further

submits that a suit was preferred by the petitioner on 03.7.2012

and the total area for which the suit was preferred is mentioned as

(2 of 6) [CW-9706/2022]

10680 Sq.ft. in paragraph-1 of the plaint. Out of this 10680 Sq.ft.

of land, the petitioner sold 5340 Sq.ft. of land to one C.R. Build

Con. Private Limited vide sale agreement dated 19.06.2012.

Learned counsel also submits that by an inadvertent error, this

fact of sale could not be mentioned in the plaint and actually the

suit for eviction should have been filed for the remaining land after

reducing 5340 Sq.ft., which has already been sold to C.R. Build

Con. Private Limited. Therefore, in these circumstances, this

application under Order 6 Rule 17 C.P.C. read with Section 151 of

C.P.C. has been filed.

Learned counsel further submits that such application has

erroneously been rejected by the learned trial Court as the

application for amendment of the pleadings could be filed at any

stage before commencement of the trial. To buttress his

arguments, learned counsel for the petitioner has relied upon the

judgment of the Hon'ble Supreme Court in the case of Varun

Pahwa V/s Renu Chaudhary reported in AIR 2019 SC 1186.

He, therefore, prays that the writ petition may kindly be allowed

and the order dated 22.04.2022 may be quashed and the

application preferred by the petitioner for amendment in the plaint

may be allowed.

Per contra, learned counsel for the respondents vehemently

argued that no wrong has been committed by the learned trial

Court while rejecting the application preferred by the petitioner for

amendment of the plaint. Learned counsel further submits that as

per the plain reading of the proviso to Order 6 Rule 17 C.P.C., it is

clear that the amendment may be allowed only if the learned trial

Court comes to the conclusion that in spite of due diligence, the

party was not aware of the facts at the time of filing of the suit

(3 of 6) [CW-9706/2022]

which are sought to be placed on record before the trial Court by

way of an amendment.

Learned counsel for the respondents also submits that the

petitioner is the only person who is signatory to the sale

agreement which was made in favour of C.R. Build Con. Pvt. Ltd.

on 19.06.2012 and merely after 14 days of the sale agreement,

the suit was filed. The petitioner should have mentioned the fact

of the sale in the plaint as he was fully aware of the sale of the

piece of land sold to C.R. Build Con. Pvt. Ltd. Learned counsel

further submits that the amendment sought for after a period of

six years cannot be said to be bonafide for the reason that C.R.

Build Con. Pvt. Ltd. to whom the petitioner had sold the certain

piece of land, also preferred a suit for eviction against the

respondents and the same is pending consideration before the

learned trial Court in which the plaintiff evidence has been

completed.

Learned counsel for the respondents further submits that

just to fill the lacuna in this suit, the present application has been

filed. It is further submitted that the fact of such sale was brought

to the notice of the learned trial Court by the respondents by way

of filing an application under Order 7 Rule 11 of C.P.C. At that

point of time also, the petitioner failed to take recourse for

carrying out the amendment in the plaint.

In nutshell, learned counsel for the respondents submits that

the amendment sought for is not bonafide and it cannot be said

that in spite of due diligence, the fact of sale was not within the

knowledge of the petitioner at the time of filing the suit. Learned

counsel for the respondents has relied upon the judgment of this

Court in the case of Manju Lata Sharma V/s Prahlad Tamboli

(4 of 6) [CW-9706/2022]

& Ors. reported in 2018(1) DNJ (Raj.) 209 and has prayed

that the writ petition may be dismissed.

I have considered the submissions made at the Bar and have

gone through the order impugned as well as other relevant record

of the case.

The undisputed fact of the present case is that the petitioner

preferred a suit for eviction of the respondents from the suit

property under the Transfer of Property Act and the same is

pending consideration before trial Court since the year 2012. It is

also noted that the fact of sale of 5340 Sq.ft. of land out of the

land mentioned in the suit i.e. 10680 Sq.ft. was sold by the

petitioner himself to the C.R. Build Con. Pvt. Ltd. on 19.06.2012

under his own signature, is within the knowledge of the petitioner.

Thus, it is hard to believe that the said fact of sale escaped from

the mind of the petitioner at the time of filing of the suit. The

learned trial Court has taken note of the fact that even when the

application was preferred by the respondents under Order 7 Rule

11 read with Section 151 C.P.C. at the inception of the suit

proceedings, the petitioner was well within the knowledge of the

fact that out of the entire piece of land i.e. 10680 Sq.ft., 5340

Sq.ft. of land has already been sold to C.R. Build Con. Pvt. Ltd.

Even then, the petitioner has not brought the amendment in the

plaint. At this stage i.e. after six years, the petitioner has filed an

application for amendment of the plaint, shows lack of bonafide on

the part of petitioner.

It is true that no time limit is provided for bringing the

amendment in the pleadings, but at the same time it should be

shown before the Court that even after due diligence the certain

facts escaped attention of the plaintiff at the time of filing the suit.

(5 of 6) [CW-9706/2022]

Non-mentioning of certain facts which are sought to be amended

must be a bonafide error on the part of the plaintiff. However, in

the present case the time period gains significance when it is

noted that the C.R. Build Con. Pvt. Ltd. to whom the petitioner

sold the 5340 Sq.ft. of piece of land from the same property and

C.R. Build Con Pvt. Ltd. has also preferred an eviction suit against

the respondents and in the same suit, the plaintiff evidence has

been completed. It is also a fact that both the suits were filed

simultaneously. In the present suit, the issues have been framed,

but the plaintiff evidence is yet to be commenced.

The judgment relied upon by the petitioner has no

application as the Hon'ble Supreme Court in the case of Varun

Pahwa (supra) has very categorically held that if the plaint is not

properly drafted and certain facts were not correctly mentioned

because of the mistake of the counsel or may be on account of the

lack of understanding, then the amendment in the pleadings

cannot be refused merely because of the mistake, negligence,

inadvertence or even infraction of the Rules of Procedure.

However, in the present case the factors showing bonafide

mentioned in the judgment are clearly missing and it cannot be

said that despite due diligence, the fact of sale of 5340 Sq.ft. of

land to C.R. Build Con. Pvt. Ltd by the petitioner could not be

mentioned while drafting the plaint. Hence, the judgment relied

upon by the learned counsel for the petitioner has no application

in the present case and is clearly distinguishable.

However, learned counsel for the respondents relied upon the

judgment in the case of Manju Lata Sharma (Supra) is

applicable in the present set of facts, wherein it is held as under:-

(6 of 6) [CW-9706/2022]

"After hearing counsel for the parties and perusing the record of the case as well as precedent law, this Court is of the opinion that the facts which were already available to the petitioner plaintiff at the time of filing of suit required his due diligence before filing the suit and once in his own wisdom, he is chosen to file his suit then any amendment without showing the cause as to how after due diligence he could not frame the amendment in the suit as being sought by him. Therefore, no cause of interference is made out in the present petition and the same is dismissed. However, the petitioner shall always have a liberty to file a separate suit for the extended for the extended relief which he wants to claim by invoking the Order 6 Rule 17 strictly in accordance with law."

This Court finds that there is no plausible explanation for

bringing the amendment sought for by the petitioner as the

factum of sale was very much within the knowledge of the

petitioner at the time of filing the suit. Therefore, it cannot be

said that despite due diligence, the petitioner could not mention

the fact of sale in the plaint at the time of filing the suit.

In view of the discussions made above, there is no error in

the order dated 22.04.2022 passed by the learned Civil Judge,

Nokha, District Bikaner while rejecting the application of the

petitioner.

The writ petition is, therefore, bereft of merit and the same

is hereby dismissed.