Uttarakhand High Court
Ms. Anjali Bhargawa vs The Petitioner Is Plaintiff In The ... on 5 April, 2023
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05.04.2023 WPMS No. 954 of 2023
Hon'ble Vipin Sanghi, C.J.
Mr. Siddharth Sah and Mr. D.C.S. Rawat, learned
counsel for the petitioner.
Mr. Yogesh Chandra Tiwari, learned Standing
Counsel for the State of Uttarakhand / respondent No.
Ms. Anjali Bhargawa, learned counsel for Gram
Sabha Simalchaur.
The present petition, under Article 227 of the
Constitution of India, has been preferred to assail the
orders dated 05.08.2022 passed by the learned Senior
Civil Judge, Kotdwar, Pauri Garhwal in Civil Suit No.
42/2015 titled "Smt. Santosh Devi vs. State of
Uttarakhand and others" preferred by the petitioner,
whereby the Amendment Application moved by the
petitioner for amending the plaint was rejected as well
as the order dated 07.01.2023 passed by the Revisional
Court of the Additional District Judge, Kotdwar, Pauri
Garhwal in Civil Revision No. 19/2022 titled "Smt.
Santosh Devi vs. State of Uttarakhand and others",
whereby the revision filed against the first order was
rejected.
The petitioner is plaintiff in the aforesaid Suit. The
petitioner preferred an Amendment Application under
Order VI Rule 17 CPC to incorporate a plea that from
the Survey Report, it had emerged that the
respondents had raised construction of residences for
police on an area of 34.5 meters X 17.1 meters
admeasuring 589.951 sq. meters. The Survey Report
was made on 17.03.2020 in pursuance of the order
dated 12th July, 2017. At the time when the
Amendment Application was moved by the petitioner,
the evidence of the plaintiff had already been closed
and the evidence of the respondents/defendants was
being recorded. The Trial Court held that the
information, which the petitioner claims to have derived
from the Survey Report should have been in the
knowledge of the petitioner / plaintiff from before, and
there was no explanation furnished by the petitioner for
the extreme delay in preferring the Amendment
Application, after the commencement of the trial and
closing of the evidence of the plaintiff. The Revisional
Court has conferred with the said findings.
The submission of Mr. Sah, learned counsel for
the petitioner, is that the Courts below have gone into
the merits of the plea sought to be incorporated by way
of amendment, which could not have been done and
that could not have been the basis of rejection of the
Amendment Application. He states that it was only
after the Survey Report dated 17.03.2020 that the
petitioner gained the knowledge of encroachment on
the petitioner's land, and subsequently, the
amendment was moved. He further submits that if the
petitioner is entitled to maintain a fresh suit on the
basis of the Survey Report, he can certainly seek
amendment of the pending suit. In this regard, he has
placed reliance on the observation made by the
Supreme Court in Paragraph-7 of Sampath Kumar vs.
Ayyakannu and another (2002) 7 SCC 559.
In proceedings, under Article 227 of the
Constitution of India, the mandate of this Court is to
see that the Courts below function within the bounds of
their jurisdiction. While passing the impugned orders,
it cannot be said that the Courts below have either
failed to exercise the jurisdiction vested in them, or
exceeded their jurisdiction. Both the Courts below
have given their reasons for passing the impugned
orders. There is no material irregularity in the
proceedings of the Courts below, and it cannot be said
that the impugned orders have caused grave injustice
to the petitioner, compelling her to invoke the
jurisdiction under Article 227 of the Constitution of
India. Even on merits, I see no infirmity in the reasons
adopted by the learned Courts below.
Reliance placed on the judgment of the Supreme
Court in Sampath Kumar (supra) is inappropriate for
the reason that the said judgment is related to a case
covered by an unamended provision of the Code of Civil
Procedure. Post the amendment of the Code of Civil
Procedure on 01.07.2002, the spirit of the law is that
belated amendments should not be allowed so as to
hasten the disposal of the suits, which have been
clogging the system.
I am, therefore, not inclined to interfere with the
impugned orders. The writ petition is, accordingly,
dismissed.
(Vipin Sanghi, CJ)
05.04.2023
Rathour
