Rajasthan High Court - Jodhpur

Ramuram vs Lunaram (2024:Rj-Jd:10588) on 1 March, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:10588]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN

                                  AT JODHPUR


                 S.B. Civil Writ Petition No. 2497/2024

1.       Ramuram S/o Manglaram, age 51 years, Resident of
         Gram Osiyan Tehsil Osiyan District Jodhpur.
2.       Smt. Vimla W/o Motiram, age 33 years, Resident of
         Hariomnagar, Akalkhori, Tehsil Osiyan, District Jodhpur.
                                                                      ----Petitioners
                                       Versus
1.       Lunaram S/o Multanram, Resident of Jatipura, Tehsil
         Osiyan, District Jodhpur.
2.       Omaram S/o Lunaram, Resident of Jatipura, Tehsil
         Osiyan, District Jodhpur.
3.       Abbas Ali S/o Nabu Kha, Resident of Osiyan, Tehsil
         Osiyan, District Jodhpur.
4.       Smt. Kamla W/o sHRIKhushalram, Resident of Osiyan,
         Tehsil Osiyan, District Jodhpur.
                                                                    ----Respondents


For Petitioner(s)            :     Mr. Roshan Lal.
For Respondent(s)            :     Mr. Jitendra Choudhary.


               HON'BLE DR. JUSTICE NUPUR BHATI

Order 01/03/2024

1. The instant writ petition has been preferred under Article 227

of the Constitution of India with the following prayers:-

"अतः प्रार्थीगण द्वारा प्रस्तुत रिट याचिका को स्वीकार किये जाने का आदे श फरमायें तथा विचारण न्यायालय विद्वान सिनियर सिविल जज, ओसियाँ जोधपरु जिला में लम्बित अस्थाई निषेधाज्ञा के प्रार्थना पत्र संख्या 28/2023 (16/2023) में पारित आदे श दिनांक 15-2-2024 (एनेक्चर-

7) को अपास्त व निरस्त किये जाने का आदे श फरमावे तथा प्रार्थीगण के प्रार्थना पत्र अन्तर्गत आदे श 6 नियम 17 सपठित धारा 151 सीपीसी (एनेक्चर-5) को स्वीकार किये जाने का आदे श फरमावे । अन्य कोई उचित आदे श जो माननीय न्यायालय प्रार्थीगण के पक्ष में पारित करना आवश्यक समझता हो, सादिर फरमावें ।"

[2024:RJ-JD:10588] (2 of 8) [CW-2497/2024]

2. Brief facts of the case are that petitioner No.1's residential

land is situated in Khasra No.1597/28, Village Osiya and petitioner

No. 2's residential land is situated in Khasra No.1588/63, while

respondent No. 4's occupied land is situated in Khasra

No.1588/66, wherein a colony has been carved out. The land of

petitioner No.2, measuring 2 bigha, is entered in the records by

the name of Mr. Khushlaram as per the measurement done on

21.11.2019. Khushlaram had sold 10 biswa land to his wife, Kamla

and 1 bigha 10 biswa land to the petitioner No. 2 by way of a

registered sale deed, wherein the colony has been carved out into

41 plots thus, the petitioners and respondent No. 4 are having

peaceful possession on the said colony.

3. Respondent Nos.1 to 3, raised a boundary wall of stones as

well as of fencing on the eastern side of the said land on

17.02.2023. Appalled by the said act of the respondent No.1 to 3,

the petitioners filed a complaint under Section 156(3) of the Code

of Criminal Procedure, 1973. The petitioners being aggrieved by

by such act of the respondent nos. 1 to 3 filed a suit (Annexure-1)

for permanent and mandatory injunction before the learned Trial

Court. Along with which, an application seeking temporary

injunction (Annexure-2) was also filed with a request to restrain

the respondent nos. 1 to 3 from interfering and maintain the

status quo of the said land till the pendency of the suit.

4. Post the service of notice, a reply to the temporary injunction

application was filed by respondent Nos. 1 to 3 while denying all

the facts on 18.12.2023 (Annexure-3). During the pendency of the

application, the petitioners had preferred an application

[2024:RJ-JD:10588] (3 of 8) [CW-2497/2024]

(Annexure-4) under Order VI Rule 17 read with Section 151 of the

Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC')

while submitting that on receiving information, prior to filing the

suit along with the temporary injunction by the petitioners, the

respondent nos. 1 to 3 have erected an iron gate and stone slab

on the land of the petitioners and have constructed a shield over

them. Thus, the said submission was requested to be added in

paragraph No. 6 and 11 (2) of the plaint preferred by the

petitioners. A similar application for amendment under Order VI

Rule 17 was also presented along with the application for

temporary injunction preferred by the petitioners (Annexure-5).

5. The respondent nos. 1 to 3 did not file reply to the

application for amendment to the suit as well as the application for

temporary injunction and thus, they were argued finally before the

learned Trial Court.

6. Learned Trial Court, after hearing the parties, passed an

order dated 15.02.2024 (Annexure-6) allowing the application for

amendment to the suit while dismissing the application for

amendment to the application for temporary injunction on the

same day, 15.02.2024 (Annexure-7).

7. Thus, the petitioner, being aggrieved of the order dated

15.02.2024 (Annexure-7), passed by the learned Trial Court

insofar it rejects amendment sought in the application for

temporary injunction, has preferred this writ petition.

8. Learned counsel for the petitioners submits that since the

learned Trial Court had allowed the application for amendment to

the original suit under Order VI Rule 17, there was no occasion for

[2024:RJ-JD:10588] (4 of 8) [CW-2497/2024]

the learned Trial Court not to allow application seeking

amendment in the application for temporary injunction, inasmuch

as the amendment has been sought on the same terms in TI

application as well. The relevant paragraphs of the amendment to

the suit under reads as under:-

"इसलिए वादीगण के वाद पत्र के पद संख्या 6 में यह जोड़ा जाना आवश्यक है कि 'प्रतिवादी संख्या 1 व 2 द्वारा वादीगण की भमि ू पर अवैध रूप से लोहे की फाटक चढ़ाई है तथा मौके पर अवैध रूप से पट्टीयां रोपकर उस पर चदर चढाकर ढालिये का निर्माण किया है इसी प्रकार वाद पत्र के पद संख्या 11(2) में यह जोड़ा आवश्यक है कि 'प्रतिवादी संख्या 1 व 2 द्वारा अवैध रूप से जो लोहे की फाटक चढाई है तथा पत्थर की पट्टीयां रोपकर उस पर चद्दर चढाकर जो ढालिये का निर्माण किया है उसे प्रतिवादी संख्या 1 व 2 के खर्चे पर हटाये जाने का आदे श फरमाया जावें ।"

The relevant paragraphs of the amendment to the temporary

injunction application under reads as under:-

"इसलिए प्रार्थीगण के प्रार्थना पत्र के पद संख्या 7 में यह जोड़ा जाना आवश्यक है कि 'अप्रार्थी संख्या 1 व 2 द्वारा प्रार्थीगण की भमि ू पर अवैध रूप से लोहे की फाटक चढ़ाई है तथा मौके पर अवैध रूप से पट्टीयां रोपकर उस पर चदर चढाकर ढालिये का निर्माण किया है ।"

9. Learned counsel for the petitioners further submitted that

only if the prayer is amended, the entire nature of the suit

changes, however in the present case, only the pleadings are

sought to be amended.

10. Per contra, learned counsel for the respondents submits that

the petitioners only want to disturb the peaceful use of the

property of the respondents, by way of seeking amendment to

their temporary injunction application under Order VI Rule 17 of

the CPC. He further submits that the amendment to the temporary

injunction application is only sought to delay the proceedings and

thus, it was rightly rejected by the learned Trial Court and for the

purpose of the same, he relies upon the judgment passed by the

Hon'ble Apex Court in the case of M. Revanna v. Anjanamma

[2024:RJ-JD:10588] (5 of 8) [CW-2497/2024]

(Dead) by L.R.s and Ors. reported in AIR 2019 SC 940. The

relevant para is reproduced as under:-

"5. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order VI Rule 17 of the Code of Civil Procedure virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money."

11. Learned counsel for the respondents further submits that

Khasra No. 1588/66 is an agricultural land and therefore, the Civil

Court does not have the jurisdiction. The land was subsequently

demarcated and measured on 19.04.2023, wherein it was seen

that there was a wall, an iron gate and stones and that there was

no plot on the disputed spot.

12. Heard learned counsel for the parties, perused material

available on record and judgments cited at the Bar.

13. This court finds that the provision of Order VI Rule 17 can be

divided into two parts, wherein the first part endows upon the

court a discretionary power to allow for amendment while the

second part bestows a mandatory pre-condition that has be

[2024:RJ-JD:10588] (6 of 8) [CW-2497/2024]

satisfied while allowing any application under Order VI Rule 17.

The relevant provision reads as under:-

"17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

14. This court also observes that in the case of M/s Revajeetu

Builders v. M/s Narayanswamy & Sons & Ors. reported in

(2009) 10 SCC 84, has held that one of the important factors to

be considered while allowing for amendment under Order VI Rule

17 is that no prejudice is caused to the other party by way of

making such amendment to the pleadings. It was also upheld that

such amendment does not fundamentally change the nature and

character of the case. The relevant para is reproduced as under:-

"67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims

[2024:RJ-JD:10588] (7 of 8) [CW-2497/2024]

would be barred by limitation on the date of application."

15. This court further finds that in the judgment passed by the

Hon'ble Apex Court in the case of Kailash v. Nankhu & Ors.

reported in (2005) 4 SCC 480, it was upheld that in a civil suit,

the trial is set to commence when the issues are settled and when

the case is set down for recording of evidence, however, in the

present case, the suit has not yet reached this stage and only an

ad interim order for maintaining the status quo has been granted

by the learned Trial Court on 07.10.2023. Therefore, under Order

VI Rule 17, the Court can allow the amendment if filed before the

commencement of the Trial, provided no prejudice is caused to

the other party. The relevant para is reproduced as under:-

"13. At this point the question arises : When does the trial of an election petition commence or what is the meaning to be assigned to the word 'trial' in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and upto the date of decision therein are included within the meaning of the word 'trial'."

16. Thus, looking into the circumstances of the case in hand, this

court is of the view that since the amendment under Order VI Rule

17 has been allowed by the learned Trial Court in the original suit

vide order dated 15.02.2024 (Annexure-6), the same ought to

have been allowed in the application seeking temporary injunction

and that, the amendment sought for, comprises of the same plea,

[2024:RJ-JD:10588] (8 of 8) [CW-2497/2024]

which in no manner changes the fundamental nature of the suit or

causes prejudice to the other party. Once the amendment in the

plaint has been permitted to the satisfaction of the learned Trial

Court then the corresponding amendment in the Temporary

Injunction application would not cause any prejudice to the parties