Rajasthan High Court - Jodhpur

Atma Ram vs Karmjeet Kaur on 9 January, 2023

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10201/2022

1. Atma Ram S/o Shri Sahi Ram Kumhar, Aged About 53 Years, Ratan Colony, Ward No. 43, Hanumangarh Road, Sriganganagar.

2. Mohan Lal S/o Shri Sahi Ram Kumhar, Aged About 55 Years, Ratan Colony, Ward No. 43, Hanumangarh Road, Sriganganagar.

3. Vijay S/o Shri Ratan Lal Kumhar, Aged About 32 Years, Ratan Colony, Ward No. 43, Hanumangarh Road, Sriganganagar.

----Petitioners Versus

1. Karmjeet Kaur W/o Shri Govinder Singh Jatsikh, Aged About 3 Years, Ratan Colony, House No. 3, Gali No. 1, Ward No. 43, Hanumangarh Road, Sriganganagar.

2. Urban Improvement Trust, Sriganganagar Through Its Secretary.

3. Sahi Ram S/o Moti Ram, Ratan Colony, Ward No. 43, Hanumangarh Road, Sriganganagar.

4. Sub-Registrar, Sriganganagar.

----Respondents

For Petitioner(s) : Dr. Sachin Acharya, Sr. Advocate with Mr. Ashwini Kumar Babel.

For Respondent(s)        :     Mr. Hemant Jain
                               Mr. Mahipal Singh Rathore.


        HON'BLE MR. JUSTICE ARUN BHANSALI
                       Order
09/01/2023

This writ petition has been filed by the petitioners aggrieved

against the order dated 20/5/2022 passed by the Senior Civil

Jude, Sriganganagar, whereby, the application filed by the

petitioners under Order VI Rule 17 CPC has been dismissed.

The suit was filed by the respondent no.1-plaintiff for

declaration and permanent injunction in relation to a piece of land

situated at Ratan Colony, Sriganganagar. The plaintiff questioned

the validity of registered document dated 27/9/2019 executed by

(2 of 7) [CW-10201/2022]

defendant no.2 through his power of attorney holder in favour of

defendant nos. 3 to 5.

The suit was contested by the defendants no. 2 to 5 by

claiming that the transfer made to them was valid. Based on the

submissions of the parties, the trial court framed 06 issues.

Prior to that the Commissioner gave his report dated

15/4/2021 pertaining to the plot in question against which the

petitioners filed objections on 26/8/2021.

The petitioners filed application under Order VI Rule 17 CPC

seeking to add para 3 and 4 in the additional pleas inter alia

claiming that the same was necessary for the purpose of

clarification of the status of the plot in question. The application

was contested by the plaintiff.

The trial court by its order impugned, after noticing the

submissions and the judgments relied on by the parties, came to

the following conclusion:

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The trial court came to the conclusion that reason for non-

filing of the amendment application earlier has been indicated as

defendant no. 3 suffering from Corona, however, no documentary

evidence has been filed. The contentions raised in the amendment

(3 of 7) [CW-10201/2022]

application were available at the time of filing of the written

statement and the same were not incorporated at that time and

same has been done at the stage of evidence of the plaintiff,

which appears to have been done for delaying the proceedings

and consequently rejected the application.

Learned counsel for the petitioners, after taking the Court

through the plaint, written statement, the report of the

Commissioner and the amendment sought, attempted to make

submissions that the amendment was necessary for just disposal

of the case. As the petitioners, by the said application, simply

attempted to clarify the status of the plot in question and that the

plea raised is neither contrary to the stand already taken nor the

same would change the nature of the pleas raised by the

petitioners, therefore, rejection of the application in a cursory

manner without even dealing with the amendment sought to be

made by the petitioners is not justified.

Reliance has been placed on Life Insurance Corporation of

India vs. Sanjeev Builders Private Ltd. & Anr. : Civil Appeal No.

5909/2022 decided on 1/9/2022 by the Hon'ble Supreme Court,

State of Bihar & Ors. vs. Modern Tent House & Anr. : 2018 DNJ

(SC) 9.

Learned counsel for the respondents vehemently opposed

the submissions. It was submitted that the plea raised by the

petitioners in the application under Order VI Rule 17 CPC pertains

to the Commissioner report being the cause of filing the

application. Against the Commissioner report objections have

already been filed and, therefore, insofar as Commissioner report

is concerned, its fate would be decided on the decision of

objections raised by the petitioners.

(4 of 7) [CW-10201/2022]

Further submissions were made that the plea raised by the

plaintiff only pertained to the fact that the land owned by Ram

Rakh, the predecessor of the petitioners, was of particular

dimension, which entire land also stood transferred by defendant

no.2, his power of attorney holder and, therefore, there was

nothing left with him to transfer to his children, defendant nos. 3

to 5 and, therefore, the transfer made was liable to be set aside.

However, by way of filing amendment, the petitioners were

seeking to make reference from before the land was owned by

Ram Rakh to indicate as if the disputed land, though more than

what was owned by Ram Rakh, also belonged to him and,

therefore, land could have been transferred by defendant no.2 to

defendant nos. 3 to 5, which attempt is wholly unjustified and

rejection of the application by the trial court is justified.

Reliance was placed on Gopal Swami vs. Thakur Ji Shri Sita

Ram Ji : 2020 (3) RLW (Raj.) 2109.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

A bare look at the order passed by the trial court and the

findings recorded by it, as quoted hereinbefore, reveals that the

trial court did not deal with the application on the parameters

which have been laid down by the Hon'ble Supreme Court and in a

wholly cursory manner has dealt with the application and has

rejected the same by indicating that the documentary evidence for

defendant no.3 suffering from Corono has not been produced and

that the application has been filed only for the purpose of causing

delay.

As to whether the amendment was necessary for the just

disposal of the suit and whether the amendment sought was

(5 of 7) [CW-10201/2022]

unnecessary for just disposal of the suit has not at all been dealt

with by the trial court while deciding the application.

The Hon'ble Supreme Court in its latest verdict in the case of

Life Insurance Corporation of India (supra) after exhaustively

dealing with the aspect of amendment inter alia laid down as

under:

"70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin- pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time

(6 of 7) [CW-10201/2022]

barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)"

Similarly, in the case of State of Bihar (supra), the Court

while accepting the application observed as under:

"8) We have perused the amendment application filed by the appellants. We find that firstly, the proposed amendment is on facts and the appellants in substance seek to elaborate the facts originally pleaded in the written statement; secondly and in other words, it is in the nature of amplification of the defense already taken; thirdly, it does not introduce any new defense compared to what has originally been pleaded in the written statement; fourthly, if allowed, it would neither result in changing the defense already taken nor will result in withdrawing any kind of admission, if made in the written statement; fifthly, there is no prejudice to the plaintiffs, if such amendment is allowed because notwithstanding the defense or/and the proposed amendment, the initial burden to prove the case continues to remain on the plaintiffs; and lastly, since the trial is not yet completed, it is in the interest of justice that the proposed amendment of the defendants should have been allowed by the Courts below rather than to allow the defendants to raise such plea at the appellate stage, if occasion so arises."

(7 of 7) [CW-10201/2022]

Looking to the parameters laid down, it is apparent that the

trial court, as observed hereinbefore, has failed to adjudicate the

application on relevant parameters.

So far as the judgment in the case of Gopal Swami (supra) is

concerned, the same has relied on Revajeetu Builders &

Developers vs. Narayanaswamy & Sons : (2009) 10 SCC 84,

which parameters are not different from what have been laid down

in Life Insurance Corporation of India (supra).

In view of the above discussion, the order passed by the trial

court dated 20/5/2022 (Annex.8) cannot be sustained and the

same is quashed and set aside.

The matter is remanded back to the trial court to re-decide

the application filed under Order VI Rule 17 CPC by the petitioners

after according opportunity of hearing keeping in view the

observations made hereinbefore as well as the law laid down by

Hon'ble Supreme Court, as noticed hereinbefore.

The trial court shall decide the application with utmost

expedition. It is made clear that setting aside of the order dated

20/5/2022 and remanding the same to the trial court should not

be taken as an expression of opinion on merits of the application

under Order VI Rule 17 CPC by this Court and it is expected of the

trial court to decide the same uninfluenced of the fact that its

earlier order dated 20/5/2022 has been set aside by this Court.