Smt. Kaushalya Devi and anr Vs. Abdul Rahoof Khan - Court Judgment

S.B.CIVIL WRIT PETITION NO.5182/2013 Smt.

Kaushalya Devi & Anr.

versus Abdul Rahoof Khan 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER

S.B.CIVIL WRIT PETITION NO.5182/2013 Smt.

Kaushalya Devi & Anr.

versus Abdul Rahoof Khan Date of Order : 24.10.2013 PRESENT HON'BLE MR JUSTICE VIJAY BISHNOI Mr Bhawani Singh, for petitioners Mr V.N.Kalla, for he respondent BY THE COURT: This writ petition has been preferred by the petitioners against the order dated 22.04.2013 passed by Civil Judge (Jr.Division).Chittorgarh (for short 'the trial court' hereinafter) in Case No.37/2009, whereby the learned trial court has rejected the applications preferred by the petitioners under Order 6 Rule 17 read with section 151 CPC for seeking necessary amendments in the written statement and under Order 8 Rule 1A(3) read with section 151 CPC for producing a registered sale-deed dated 04.06.2004 on record.

Brief facts of the case are that the S.B.CIVIL WRIT PETITION NO.5182/2013 Smt.

Kaushalya Devi & Anr.

versus Abdul Rahoof Khan 2 respondent filed a suit for mandatory and permanent injunction against the petitioner- defendants, while alleging that the petitioners are raising construction on the plot No.B-62 situated at Pratap Nagar, Chittorgarh without getting permission from the Municipal Board and without adhering the conditions of leaving sublet.

In the said suit, the respondent has also claimed that if the petitioners are allowed to raise construction, in the manner they are raising, the respondents will be deprived of light and air and, therefore, a permanent injunction for restraining the petitioners from raising construction may be issued.

In the said suit, the written statement was filed by the petitioners on 20.04.2009 and on the basis of the pleadings of the parties, issues were framed and the evidence of the rival parties were recorded and the matter was fixed for final arguments.

At this stage, the petitioners have moved two applications, one under Order 6 Rule 17 read with section 151 of the Code of Civil Procedure for seeking necessary amendments in the written statement and another under Order 8 S.B.CIVIL WRIT PETITION NO.5182/2013 Smt.

Kaushalya Devi & Anr.

versus Abdul Rahoof Khan 3 Rule 1A(3) read with section 151 CPC for producing a registered sale-deed dated 04.06.2004 on record.

The learned trial court has rejected both the above applications preferred by the petitioneRs.while observing that in the written statement filed by the petitioneRs.it was claimed that the petitioners are raising constructions on the plot in question as per the deemed permission granted by the Municipal Board because the petitioners applied for seeking permission for raising constructions before the Municipal Board by depositing necessary fees on 19.02.2009 and when the Municipal Board did not raise any objection, the petitioners raised construction.

The learned trial court has further observed that now the petitioners have come out with a case that they have raised the construction on the plot in question as per the permission granted by the Municipal Board on 04.06.2004 and as such, the petitioners want to change their stand taken by them earlier in the written statement.

The learned trial court also observed that no satisfactory explanation has been furnished by the petitioners for not S.B.CIVIL WRIT PETITION NO.5182/2013 Smt.

Kaushalya Devi & Anr.

versus Abdul Rahoof Khan 4 producing the sale-deed dated 04.06.2004 before commencement of the trial and, therefore, the permission for seeking necessary amendments in the written statement and for producing the sale deed dated 04.06.2004 on record, cannot be granted.

The learned counsel for the petitioners has assailed the validity of the impugned order passed by the learned trial court of rejecting the applications for amending the written statement and for producing the registered sale-deed dated 04.06.2012 and argued that it is permissible under the law to take inconsistent pleas and the courts should be more liberal in allowing amendment of the written statement.

The learned counsel for the petitioner has further argued that the learned trial court cannot disallow the amendments in the written statement on the ground that the defendant is altering his defence.

It is further contended by learned counsel for the petitioners that by way of application for seeking amendment in the written statement, the petitioners simply sought to bring into an additional fact on record to the effect S.B.CIVIL WRIT PETITION NO.5182/2013 Smt.

Kaushalya Devi & Anr.

versus Abdul Rahoof Khan 5 that the petitioners have raised construction on the plot No.B-62 as per the permission granted by the Municipal Board on 04.06.2004.

It is also contended by the learned counsel for the petitioners that by bringing this fact on record, no prejudice will be caused to the respondent, therefore, the trial court has illegally rejected the applications of the petitioners without looking into this aspect of the matter.

The learned counsel for the petitioners has placed reliance on decisions of Hon'ble Supreme Court in Baldev Singh & ORS.versus Manohar Singh & Anr., reported in 2007(1) RRT159and Usha Balashaheb Swami & ORS.versus Kiran Appaso Swami & Ors., reported in 2007(3) RLW2583 Per contra, learned counsel for the respondent has supported the impugned order passed by the learned trial court and argued that in the facts and circumstances of the case, the learned trial court has rightly rejected the applications preferred by the petitioner for seeking necessary amendment in the written statement and for taking documents on record.

S.B.CIVIL WRIT PETITION NO.5182/2013 Smt.

Kaushalya Devi & Anr.

versus Abdul Rahoof Khan 6 The learned counsel for the respondent has placed reliance on decisions of Hon'ble Supreme Court as well as of this Court in Chander Kanta Bansal versus Rajinder Singh Anand, reported in AIR2008SCC2234and Abdul Rahoof versus Mohd.

Rafeek Ansari & Anr., reported in 2012(2)DNJ (Raj.) 918.

Heard learned counsel for the parties and perused the material placed on record and the order impugned.

In the written statement to the suit, the petitioners specifically contended that they have raised the constructions over the plot in question as per the deemed permission of the Municipal Board of the month of February, 2009.

However, by way of application for seeking necessary amendments in the written statement, now the petitioners are claiming that they have raised the construction on the plot in question as per the permission granted by the Municipal Board on 04.06.2004 and as such, the petitioners want to wriggle out from their earlier statement.

The proposition of law laid down by S.B.CIVIL WRIT PETITION NO.5182/2013 Smt.

Kaushalya Devi & Anr.

versus Abdul Rahoof Khan 7 the Hon'ble Supreme Court in Usha Balashaheb Swami and Baldev Singh's case (supra) is not in dispute but the same is not applicable in the present controveRs.because by way of amendments in the written statement, the petitioners are not explaining any of their admission.

There is another aspect of the matter which is also to be taken into consideration that as per the proviso to the Order 6 Rule 17 of the Code of Civil Procedure, no application for amendment can 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 which now sought to raise by way of amendments, before the commencement of the trial.

In the present case, the evidence of the parties have already been concluded and the matter is at the stage of final arguments.

From perusal of the applications preferred by the petitioneRs.it is clear that sufficient reasons have not been given by the petitioners for not producing the documents in question or for not applying for S.B.CIVIL WRIT PETITION NO.5182/2013 Smt.

Kaushalya Devi & Anr.

versus Abdul Rahoof Khan 8 amendment in the written statement at earlier stage despite due diligence.

The Hon'ble Apex Court, in Rajkumar Gurawara (dead) Thr.

L.Rs.v.M/S.S.K.Sarwagi & Co.PVT.LTD.& Anr.

reported in AIR2008SCC2303 while taking into consideration the proviso to Order 6 Rule 17 of the Code of Civil Procedure, has held as under: “The fiRs.part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy.

However, this rule is subject to proviso appended therein.

The said rule with proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed.

However, if the parties to the proceedings able to satisfy the court that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial.

To put it clear, Order VI Rule 17 C.P.C.confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just.

Such amendments seeking determination of S.B.CIVIL WRIT PETITION NO.5182/2013 Smt.

Kaushalya Devi & Anr.

versus Abdul Rahoof Khan 9 the real question of the controveRs.between the parties shall be permitted to be made.

Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial.

As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made.

In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event; it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso.”

.

The Hon'ble Supreme Court, in Vidyabai & ORS.versus Padamalatha & Anr.

reported in AIR2009SC1433 while noticing its earlier decision rendered in Baldev Singh & ORS.versus Manohar Singh & Anr.

(supra) has held as under:- “42.

It is to be noted that the provisions of Order 6 Rule 17 C.P.C.have been substantially amended by the CPC (Amendment) Act, 2002.

43.

Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial.

It is submitted, that after the trial of the case S.B.CIVIL WRIT PETITION NO.5182/2013 Smt.

Kaushalya Devi & Anr.

versus Abdul Rahoof Khan 10 has commenced, no application of pleading shall be allowed unless the above requirement is satisfied.”

.

In view of the above, this Court is of the opinion that the learned trial court has not committed any illegality in rejecting the applications preferred by the petitioners for seeking necessary amendments in the written statement for producing the registered sale-deed dated 04.06.2004 on record and, therefore, no interference is called for in the order passed by the learned trial court dated 22.04.2013 while exercising powers under Article 226 & 227 of the Constitution of India.

Hence, there is no force in this writ petition and the same is hereby dismissed.

No costs.

[VIJAY BISHNOI].,J.

m.asif/-