Gopaldutt Mishra And Ors vs Anand Singh And Anr
2022 Latest Caselaw 6039 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

         S.B. Writ Miscellaneous Application No.379/2014

                                           In

                  S.B. Civil Writ Petition No.3062/2014

1. Gopaldutt Mishra Son of Late Shri Kantidutt Mishra,
2. Mukeshdutt Sharma son of Late Shri Kantidutt Mishra,
3. Manojdutt Mishra son of Late Shri Kantidutt Mishra,
All   residents     of    House        No.1494/28,           Naya    Ward   214/24,
Gopalganj, Nagra, Ajmer.


                                                           ----Petitioners-Plaintiffs
                                        Versus
1. Anand Singh S/o Late Sh. Dayal,
2. Laxminarayan S/o Late Sh. Dayal,
Both resident of Ashok Nagar, Bhatta Nagra, Balupura Road,
Ajmer.
                                                    ----Defendants-Respondents

For Petitioner(s) : Mr.Alok Chaturvedi, Adv.

For Respondent(s)             :     Mr.R.M. Jain, Adv.



         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                         Order

06/09/2022

           This case has checkered history.

The petitioners-plaintiffs filed S.B. Civil Writ Petition

No.3062/2014 before this Court challenging the order dated

28.01.2014, whereby application filed by the petitioners under

Order 6 Rule 17 CPC read with Section 151 CPC, was dismissed.

The Civil Court on account of issues being framed in the

suit and evidence of the plaintiffs being recorded and considering

the fact of dismissal of stay petition by the High Court, found that

(2 of 9) [WMAP-379/2014]

the petitioners did not exercise their due diligence in seeking

amendment of their pleadings and as such amendment application

came to be dismissed.

The writ petition of the petitioners was decided finally

by a Coordinate Bench of this Court on 27.11.2014 and while

writing the order, this Court found that in the interest of justice,

documents sought to be placed on record were allowed to be

taken on record subject to payment of cost of Rs.2,000/- to the

respondents-defendants.

The petitioners immediately filed the present Misc.

Application No.379/2014 for seeking correction/modification in the

order dated 27.11.2014. The Coordinate Bench of this Court after

hearing counsel for both the parties, modified the order and

disposed of the writ petition by directing the petitioners to pay

cost of Rs.2,000/- to the respondents-defendants and the

amendment application filed by the petitioners under Order 6 Rule

17 CPC was allowed and amended plaint incorporating amendment

was to be taken on record by the Trial Court and as such, Misc.

Application No.391/2014 was disposed of.

The respondents-defendants filed Review Petition

No.3/2015 in S.B. Civil Misc. Application No.379/2014 for seeking

recalling of the order dated 28.11.2014, passed by this Court

correcting the order dated 27.11.2014. This Court while hearing

the matter recorded a finding that order dated 28.11.2014, was

passed by the Court without giving any opportunity of hearing to

counsel for the respondents and as such, the order dated

28.11.2014 was set aside and Misc. Application No.379/2014 filed

by the petitioners was ordered to be heard on merits and at the

(3 of 9) [WMAP-379/2014]

joint request of the learned counsel for the parties, the

proceedings before the Trial Court were stayed.

This Court finds that there was yet another S.B. Writ

Misc. Application No.74/2019 was filed for recalling the order

dated 14.01.2016 passed by this Court and prayer of the

respondents to recall said order was rejected.

This Court at this juncture would like to express that

filing of such continuous misc. applications and recalling

application needs to be discouraged due to frivolous litigation

initiated by the parties and as such, the litigants/parties do not

seem to be pursuing their remedy for seeking justice in proper

Courts and on one pretext or another, this Court is burdened with

frivolous application. The resultant position remains to decide

misc. application No.379/2014 filed by the petitioners for recalling

the order dated 27.11.2014.

Learned counsel submitted that once this Court had

allowed the writ petition filed by the petitioners and permitted

amendment as sought by them in their plaint and initial order

dated 27.11.2014 was rectified by passing the order dated

28.11.2014, this Court needs to permit the petitioners to bring the

required amendment in their pleadings and as such, the relief

sought by the petitioners in their writ petition may be granted.

Learned counsel for the petitioners Mr.Alok Chaturvedi

submitted that at the time of passing of the initial order dated

27.11.2014, no objection was raised by the respondents and this

Court allowed the writ petition but inadvertently while dictating

the order dated 27.11.2014, the Court recorded that the

documents filed by the petitioner may be taken on record and

(4 of 9) [WMAP-379/2014]

such an inadvertent error has been allowed to be rectified by the

Court by passing the detailed order on 28.11.2014.

Learned counsel for the petitioners on merits of the

matter submitted that the present suit has been filed by the

petitioners for seeking permanent injunction and there is a

description of the property in the plaint itself and the petitioners

have specifically pleaded that the respondents intend to encroach

upon the land which is situated towards East side of the property

owned by the petitioners and the said adjacent land on the

Eastern Side also belongs to the petitioners, as such, in order to

give a proper description of the property, the respondents filed

amendment application which has wrongly been rejected.

Learned counsel for the petitioners submitted that by

seeking amendment, the respondents have neither changed the

nature of suit nor prayer is changed and as such, the Court below

has wrongly rejected their application.

Learned counsel further submitted that the

respondents-defendants in their written statement disputed the

documents and location of the property, furthermore the necessity

had arisen to place on record the relevant documents by filing an

application under Order 7 Rule 14 CPC by bringing on record the

sale deed executed in the year 1932 and such application was

allowed by the Court on 20.03.2009.

Learned counsel submitted that the amendment

application was filed in September, 2013 as there was interim

/stay order operating in the proceedings and as such, after due

diligence, petitioners exercised their rights and only on account of

delay, the Court below could not have rejected their application.

(5 of 9) [WMAP-379/2014]

Learned counsel for the petitioners further submitted

that suit was filed by the petitioners and as such, there is no

interim order operating as on today and if amendment is allowed,

the respondents would not suffer and this Court can compensate

the respondents by paying reasonable cost to them.

Learned counsel Mr.R.M.Jain appearing for the

respondents-defendants submitted that this Court initially had

passed the order dated 27.11.2014, as no argument was made on

behalf of the petitioners with regard to the proposed amendment,

which petitioners wanted to make in their pleadings and only on

the point of taking the documents, submissions were made by

learned counsel for the petitioners and this Court accordingly

passed the order.

Learned counsel for the respondents submitted that the

order dated 28.11.2014, was passed by modifying the earlier

order dated 27.11.2014 without hearing counsel for the

respondents and as such, the application was filed on their behalf

to recall the order dated 28.11.2014 and the same has been

allowed by this Court and as such, order dated 28.11.2014 cannot

be maintained and the writ petition filed by the petitioners is

required to be dismissed.

Learned counsel for the respondents further submitted

that provision with regard to amendment in pleading under Order

6 Rule 17 CPC has been amended in the year 2002 and as per the

proviso, the application cannot be allowed after Trial has

commenced and further if the Court has to allow such application,

due diligence of the party preventing them to amend the

pleadings, has to be shown before the Court and in the present

(6 of 9) [WMAP-379/2014]

facts of the case, petitioners took as many as 4 years after their

application under Order 7 Rule 14 CPC was allowed.

Learned counsel further submitted that sale deed said

to be executed in the year 1932 was already in the knowledge of

the petitioners when the plaint was filed and as such, subsequent

developments can only be brought on record by way of

amendment of pleading and in the present facts of the case, the

document which was already in existence and in knowledge of the

petitioners, could not have been permitted to be part of their

pleadings by way of amendment.

Learned counsel for the respondents also places

reliance on a judgment passed by the Apex Court in the case of

Ajendraprasadji N. Pande & Anr. Vs. Swami

Keshavprakeshdasji N. & Ors. reported in [AIR 2007 SC

806].

Learned counsel on the strength of the said judgment

submitted that Trial commences when the issues are settled, then

the amendment in the pleadings cannot be allowed.

Learned counsel for the respondents also places

reliance on a judgment passed by this Court in S.B. Civil Writ

Petition No.6717/2005 (Jagdish Prasad V/s. The Gram

Panchayat, Govindgarh & Ors.) decided on 29.11.2011.

On the contrary, learned counsel for the petitioners

Mr.Alok Chaturvedi places reliance on the judgment passed by the

Apex Court in the case of Abdul Rehman and Another Vs.

Mohd. Ruldu and Ors. reported in [(2012)11 SCC 341].

Learned counsel on the strength of the said judgment

submitted that the object of Order 6 Rule 17 CPC is to allow the

amendments which are necessary for determining the real

(7 of 9) [WMAP-379/2014]

question and controversy between the parties and issue of

limitation should be considered later on and as such, only on the

ground of delay, such amendment should not be discarded by the

Court.

I have heard the submissions made by learned counsel

for the parties and perused the material available on record.

This Court finds that initially order dated 27.11.2014

was passed by this Court and inadvertently instead of allowing the

amendment, this Court directed that the document filed by the

petitioners may be taken on record.

This Court is at loss to understand as how the petition

challenging the amendment declined to a party have any

relevance for giving a finding with regard to taking certain

documents on record.

This Court finds that such bona-fide inadvertent error

while recording the order, the Court immediately on the next date,

rectified the position by passing the order dated 28.11.2014 and

clarified that earlier order dated 27.11.2014 was required to be

suitably modified and accordingly, this Court allowed the writ

petition filed by the petitioners permitting them to bring on record

the amendment, which they were seeking.

This Court finds that once the order dated 28.11.2014

was passed, there remain hardly any doubt about the final view of

this Court and as such, amendment sought by the petitioners

came to be allowed.

The submission of learned counsel for the respondents

that the order dated 28.11.2014, was passed without hearing

them and as such, they need to be heard again, this Court finds

that as far as the merits of the matter is concerned, the Co-

(8 of 9) [WMAP-379/2014]

ordinate Bench of this Court has already applied its mind and

allowed the writ petition filed by the writ petitioners.

This Court in order to consider the rival submissions of

both the parties, as per the order dated 14.01.2016 passed by this

Court in Review Petition No.3/2015, again heard learned counsel

for the parties on merits of the matter.

This Court finds that the petitioners in their plaint has

made a reference of description of the property which they own

and further they also mentions about the adjacent land, which is

said to be falling on the eastern site, where the respondents are

allegedly making their encroachment.

This Court finds that the application filed by the

petitioners under Order 7 Rule 14 was already allowed and the

document relating to the property which is said to be situated on

eastern side, was having bearing in the matter and as such, if the

proposed amendment is brought by the petitioners, no loss can be

suffered by the respondents and they will have adequate

opportunity to raise all their objections as far as proposed

amendment in pleading is concerned.

This Court further has to find as whether the

amendments sought by the petitioners suffer from delay or

proviso contained in Order 6 Rule 17 CPC will come in their way by

not permitting to allow such an amendment to be brought on

record after commencement of Trial, this Court finds that once

application to bring document on record was allowed then there

has to be proper pleadings to the same effect and if the

proceedings in the suit were stayed by this Court, the petitioners

in the bona-fide manner, did not file any application for

amendment and after vacation of stay order by this Court, if

(9 of 9) [WMAP-379/2014]

application is filed for bringing on record the amendment, no

injustice can be caused to the other side as no interim order was

operating as well.

This Court finds that the order dated 28.11.2014 does

not require any interference by this Court and accordingly writ

petition filed by the petitioners in terms of order dated 28.11.2014

is required to be allowed.

This Court, however, is concerned with the fact of

pendency of the suit in the Civil Court as well as filing of different

applications in the writ petition and as such, this Court is required

to impose cost on the petitioners. This Court considering the

nature of applications filed by the petitioners and time taken by

both the parties in protecting the litigation, a sum of Rs.25,000/-

is imposed towards cost on the petitioners.

Accordingly, the petitioners will pay cost of Rs.25,000/-

to the respondents on the next date of hearing before the Trial

Court and only on payment of said cost, the amendment in the

plaint will be allowed.

Resultantly, the present misc. application stands

disposed of.

(ASHOK KUMAR GAUR), J

Himanshu Soni/17

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