CASE TITTLE: RAJ CHAUDHARY & ANR. v COL RAJINDER SINGH BHASINE & ANR
CASE NO: CM(M) 657/2016 and CM APPL. 24209/201
ORDER ON: : 20.05.2024
QUORUM: J. SHALINDER KAUR
FACTS OF THE CASE:
The issue in dispute in the present petition pertains to allowing of application filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908, The facts leading to the present appeal in question is that the respondents had filed a suit for possession along with damages against the petitioner, The petitioners contested the said suit by filing written statement, Subsequent thereto, the respondents filed an application under Order VI Rule 17 read with Section 151 CPC and on the other hand, the petitioners, moved an application under Order VII Rule 11 CPC. The said application was moved keeping in view the fact that the respondent had to carry out certain amendments in the original plaint which were beyond the scope of order passed by learned Trial Court. Both the applications were disposed off by learned Trial Court and the learned Trial Court directed the respondents to file the plaint strictly in consonance with the order passed by the Court. The said order was again not complied with and the amended plaint was filed, again carrying out more changes than what was allowed by the learned Trial Court. However, the petitioners without prejudice to their rights,filed amended written statement taking all such objections to which replication was also filed. Thereafter, evidence was led by both the parties, arguments were heard and both the parties filed their respective written submissions.later, respondent no. 1 moved an application under Order VI Rule 17 read with Section 151 CPC to amend and clarify paragraph no. 3 and prayer clause „a‟ of the plaint to which petitioners filed their reply. In the meantime, an application was moved on behalf of the respondent thereby seeking leave of the court to allow them to withdraw the said amendment CM(M) 657/2016 Page 3 of 11 application with liberty to file the same after amending the description of the property in paragraph no. 5,6,8 and 11 of the plaint. The petitioners without prejudice to their objections and contentions submitted that the application under Order VI Rule 17 already filed on behalf of respondent no. 1 may also be considered as seeking similar amendment in paragraph no. 5,6,8 and 11 of the plaint. The learned Trial Court allowed the said application with above-mentioned modifications of the respondent no. 1. The petitioner is aggrieved by the said order passed by the court of learned Additional District Judge-13, Central District, Tis Hazari Courts, Delhi and has assailed the same before this court by filing the present petition under Article 227 of the Constitution of India, 1950.
LEGAL PROVISIONS:
Order VI Rule 17 CPC which talks about the Amendment of pleadings
CONTENTIONS OF PETITIONER:
The petitioner through their counsel Mr. Rahul Dubey, submitted that theTrial Court has not rightly appreciated the provision under Order VI Rule 17 CPC, Counsel further submitted that the present case, was at the stage of final arguments and the part arguments were also addressed and at such a juncture an amendment application was moved by the respondent thereby seeking amendment of claim. counsel submitted that it is not the case that the amendments raised could not have been brought to light in spite of due diligence as one of the respondent has herself admitted in her crossexamination about the inconsistent evidence and flaw in their case, Counsel further submitted that The site plan annexed with the plaint, also does not show the suit property in red color as alleged in the plaint and as such the respondent could not have been permitted to amend the plaint by substituting the words “room over the garage” with the expression “second servant room in the garage block.” The respondent failed to show reasonable cause for allowing such amendments. counsel further submitted that the learned Trial Court has wrongly observed that the arguments of the petitioners regarding proviso to Order VI Rule 17 CPC is not tenable as the suit was instituted prior to the amendment in CPC and the learned Trial Court has failed to observe that the plaint was amended as late as in December, 2007 and the petitioners also filed their amended written statement to the amended plaint. The counsel further submitted that in the garb of the amendment, the respondents could not have been permitted to set up a new case by changing the description of the suit property and at the same time trying to introduce a new document without proving the same, at the stage of final arguments, in the shape of a fresh site plan.To conclude the arguments, the petitioners submitted that the application moved by the respondent for amendment before the learned Trial Court ought to have been signed by all the parties whereas in the present case only, respondents had signed the same and therefore, same was liable to be dismissed.
CONTENTIONS OF THE RESPONDENT:
The respondent through their counsel Mr. Amit P. Deshpande, submitted,that the amendment sought by them is only clarificatory in nature and is neither changing the nature of the claim nor nature of the suit nor any evidence is required to be led on this and therefore, no prejudice shall be caused to the petitioners, by the order passed by learned Trial Court. the counsel submitted that the dispute is with respect to identity of the suit property which was never been raised earlier hence the respondent in spite of due diligence could not have moved for amendment at an earlier stage. Moreover, no new facts are sought to be incorporated and the amendments are only clarificatory and formal in nature. counsel further submitted that as a matter of fact there is one room on each mezzanine floor described in site plan as “S Room” or for domestic storage. The said room is also used as servant room by the respective occupants. The suit was always with respect to the servant room in the garage block.” Due to oversight the word “second” got left out from the description of the property in the plaint. The counsel submitted that the dispute pertains to the servant room attached to the first floor of the suit premises namely “second servant room over garage.” The respondents by way of the present application under Order VI Rule 17 CPC wanted to bring this clarification before the learned Trial Court which was rightly appreciated and allowed by the learned Trial Court.
COURTS ANALYSIS AND JUDGEMENT:
The court on hearing both the sides is of the view that, Trial Court has allowed the amendment sought by the respondent by relying upon the Doctrine of relation back.the court also referred to various judicial precidents and observed that, in the previous site plan filed with the suit, „the room over the garage‟ has been shown in red colour and it is the same room which now being is sought to be described as „second servant room over the garage‟ by the respondents. The petitioners in the written statement in paragraph nos. 3, 5, 6, 8 and 11 are raising defence with respect to the said room only which the respondents have described as „room over the garage‟ and the respondent have referred to it as „third room above the garage” and claiming it to be part of second floor.the court opined that, It is true from the averment of both the parties, it is plainly clear that the location of the room in the site plan has been shown correctly, however, the parties are identifying the said room with different nomenclature. In this regard the court opined that the learned Trial Court has correctly observed that the amendment sought by the respondents are clarificatory in nature and no prejudice shall be caused to the petitioners if the suit property is described as „second room over the garage‟ which the petitioners are already defending. The court opined that the amendment sought by the respondents is necessary for effective adjudication of the case as the proper identification of the suit property is required.therefore, In view of the above, the court observed no infirmity in the impugned order to set it aside. Consequently, the court dismissed the present petition.
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judgement reviewed by: Sowmya.R
