WPMS/289/2012
2021 Latest Caselaw 3032 UK

IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL
       ON THE 12TH DAY OF AUGUST, 2021
                          BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


    WRIT PETITION (M/S) No. 289 of 2012

BETWEEN:

Umar Shad.                                  ..........Petitioner
     (By Mr. Pankaj Purohit, Advocate)

AND:
Naresh Kumar and others.                   ......Respondents
     (By Mr. M.S. Tyagi, Senior Advocate, assisted by Mr.
     Chandra Prakash, Advocate for respondent nos. 1 & 2,
     Mr. Tapan Singh, Advocate for respondent nos. 3 & 4 and
     Mr. N.S. Pundir, Deputy Advocate General with Mr. N.S.
     Kanyal, Brief Holder for the State of Uttarakhand)


                      JUDGMENT

Petitioner is defendant in Revenue Suit filed under Section 229-B of U.P.Z.A. & L.R. Act before Assistant Collector, Ist Class, Haridwar; while, respondent nos. 1 & 2 are plaintiffs in the said suit. Respondents nos. 1 & 2 filed an application seeking leave to amend the plaint. Petitioner, who was defendant in the suit, filed objection against the amendment application stating that the plot number mentioned in the amendment application was not there in the original plaint. Learned Assistant Collector allowed the amendment application vide order dated 13.11.2007. Petitioner challenged the said order by filing Revision under Section 333 of

U.P.Z.A. & L.R. Act, which has been dismissed by learned Commissioner, Garhwal Division vide judgment dated 31.01.2012. Feeling aggrieved by these two orders, petitioner has approached this Court.

2. It is fairly settled in law that amendment of pleading under Order 6 Rule 17 C.P.C. is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to certain conditions such as allowing amendment should not result in injustice to the other side; normally a clear admission made conferring certain right on a plaintiff is not allowed to be withdrawn by way of amendment by a defendant resulting in prejudice to such a right of plaintiff, depending on facts and circumstances of a given case. In certain situations, a time barred claim cannot be allowed to be raised by purposing an amendment to take away valuable accrued right of a party.

3. Hon'ble Supreme Court, in the case of B.K. Narayana Pillai vs. Parameshwaran Pillai and another reported in (2000) 1 SCC 712, after considering entire law on the subject, has held as under:-

"3. The-purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt

hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in, the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation."

4. Learned counsel for the respondents have informed the Court that proviso to Order 6 Rule 17 C.P.C. is not attracted to the present case, as at the time of filing of amendment application trial had not commenced, therefore, there was no delay in filing the amendment application.

5. This Court does not find any reason to interfere with the orders passed by learned Courts below, whereby the amendment application filed by respondent nos. 1 & 2 was allowed.

6. Even otherwise also, the supervisory jurisdiction under Article 227 of Constitution of India cannot be used to exercise powers as an appellate Court or to substitute its own judgment in place of that of subordinate Court to correct an error, which is not apparent on the face of the record, as held by Hon'ble Supreme Court in the case of Ranjeet Singh vs. Ravi Prakash reported in (2004) 3 SCC 682.

7. In such view of the matter, the writ petition fails and is dismissed.

8. There will be no order as to costs.

(MANOJ KUMAR TIWARI, J.) Arpan