Smt. Nirmala Vs. the Collector, Jodhpur and anr. - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. orderp.c. jain, j. 1. this revision petition under section 115 of the code of civil procedure, 1908 is directed against the order dated 10-12-1996 passed by the learned additional civil judge [junior division], jodhpur city, jodhpur whereby the application filed by the plaintiff under order vi, rule 17, c.p.c. was refused.2. the brief facts of the case are that the plaintiff-petitioner owns a house along with a piece of land at kalal colony, jodhpur which was purchased by her from one anant ram vide registered sale deed dated 3-3-1967. it is also relevant to mention here that the said anant ram had also purchased this plot from one rawatsingh vide registered sale deed dated 3-6-1958. since then the plaintiff is in possession of this house and open land. the open piece of land has been shown in red colour in the site plan.3. the plaintiff-petitioner moved an application under order vi, rule 17, c.p.c. seeking amendment in her suit. she has averred that though certain averments have been made in the suit regarding her adverse possession over the suit property but however, no relief in the shape of declaration has been sought by her in the plaint. she, therefore, prayed that she may be allowed to. amend the plaint seeking declaration that since she has been in adverse possession over the suit property, she has become its owner.4. the above application was resisted by the defendants. however, the learned addl. civil judge vide his order dated 10-12-1996 rejected the above application filed by the plaintiff on the ground that if the amendment sought by the plaintiff is allowed, the nature of the reliefs sought by her would be changed and even cause of action would also be changed.5. i have heard mr. r. m. bhansali, the learned counsel appearing for the plaintiff-petitioner and m/s. b. r. mehta and rewa chand, the learned counsel appearing for the defendants-non-petitioners and have very carefully gone through the record of the case.6. mr. r. m. bhansali, the learned counsel appearing for the plaintiff-petitioner has contended that pleadings regarding adverse possession has already been averred by the plaintiff in her plaint and now, she only wants to amend the relief clause. he submitted that if the relief clause sought to be amended by the plaintiff is allowed, it would neither change the cause of action nor change the nature of the suit as pleadings regarding adverse possession have already been incorporated in the plaint. he, has, therefore, contended that the learned trial court has committed a jurisdiction error in refusing to the application under order vi, rule 17, c.p.c. filed by the plaintiff petitioner.7. the learned counsel appearing for the defendants-non-petitioners have supported the impugned order passed by the learned trial court.8. i have considered the rival contentions made at the bar. it cannot be gainsaid that in para no. 2 of the plaint, the plaintiff has already taken pleading regarding her adverse possession. she has categorically stated in the plaint that she is in adverse possession of the above property for the last more than 30 years. thus, the averment regarding adverse possession has already been incorporated by the plaintiff in her suit. the plaintiff is now seeking to amend the relief, which is based on the pleading already taken by her in the plaint. moreover, since the amendment has been sought at the very early stage of the suit and it is based on the pleading of the plaintiff. i am of opinion that it would neither change the cause of action nor the nature of the suit. i, therefore, hold that the learned trial court has committed a jurisdictional error in refusing the application filed under order vi, rule 17, c.p.c. filed by the plaintiff-petitioner.9. i, therefore, allow this revision petition, set aside the order dated 10-12-1996 passed by the learned additional civil judge [junior division], jodhpur city, jodhpur in civil original case no. 54 of 1991 and allow the application filed by the plaintiff under order vi, rule 17, c.p.c. on payment of cost of rs. 1000/- to the defendant-non-petitioners. the plaintiff shall pay or tender the cost imposed by this court to the defendants within one month from the date of this order. the plaintiff is directed to file the amended plaint before the learned trial court within one month from today.

Judgment:
ORDER

P.C. Jain, J.

1. This revision petition under Section 115 of the Code of Civil Procedure, 1908 is directed against the order dated 10-12-1996 passed by the learned Additional Civil Judge [Junior Division], Jodhpur City, Jodhpur whereby the application filed by the plaintiff under Order VI, Rule 17, C.P.C. was refused.

2. The brief facts of the case are that the plaintiff-petitioner owns a house along with a piece of land at Kalal Colony, Jodhpur which was purchased by her from one Anant Ram vide registered sale deed dated 3-3-1967. It is also relevant to mention here that the said Anant Ram had also purchased this plot from one Rawatsingh vide registered sale deed dated 3-6-1958. Since then the plaintiff is in possession of this house and open land. The open piece of land has been shown in red colour in the site plan.

3. The plaintiff-petitioner moved an application under Order VI, Rule 17, C.P.C. seeking amendment in her suit. She has averred that though certain averments have been made in the suit regarding her adverse possession over the suit property but however, no relief in the shape of declaration has been sought by her in the plaint. She, therefore, prayed that she may be allowed to. amend the plaint seeking declaration that since she has been in adverse possession over the suit property, she has become its owner.

4. The above application was resisted by the defendants. However, the learned Addl. Civil Judge vide his order dated 10-12-1996 rejected the above application filed by the plaintiff on the ground that if the amendment sought by the plaintiff is allowed, the nature of the reliefs sought by her would be changed and even cause of action would also be changed.

5. I have heard Mr. R. M. Bhansali, the learned counsel appearing for the plaintiff-petitioner and M/s. B. R. Mehta and Rewa Chand, the learned counsel appearing for the defendants-non-petitioners and have very carefully gone through the record of the case.

6. Mr. R. M. Bhansali, the learned counsel appearing for the plaintiff-petitioner has contended that pleadings regarding adverse possession has already been averred by the plaintiff in her plaint and now, she only wants to amend the relief clause. He submitted that if the relief clause sought to be amended by the plaintiff is allowed, it would neither change the cause of action nor change the nature of the suit as pleadings regarding adverse possession have already been incorporated in the plaint. He, has, therefore, contended that the learned trial Court has committed a jurisdiction error in refusing to the application under Order VI, Rule 17, C.P.C. filed by the plaintiff petitioner.

7. The learned counsel appearing for the defendants-non-petitioners have supported the impugned order passed by the learned trial Court.

8. I have considered the rival contentions made at the bar. It cannot be gainsaid that in para No. 2 of the plaint, the plaintiff has already taken pleading regarding her adverse possession. She has categorically stated in the plaint that she is in adverse possession of the above property for the last more than 30 years. Thus, the averment regarding adverse possession has already been incorporated by the plaintiff in her suit. The plaintiff is now seeking to amend the relief, which is based on the pleading already taken by her in the plaint. Moreover, since the amendment has been sought at the very early stage of the suit and it is based on the pleading of the plaintiff. I am of opinion that it would neither change the cause of action nor the nature of the suit. I, therefore, hold that the learned trial Court has committed a jurisdictional error in refusing the application filed under Order VI, Rule 17, C.P.C. filed by the plaintiff-petitioner.

9. I, therefore, allow this revision petition, set aside the order dated 10-12-1996 passed by the learned Additional Civil Judge [Junior Division], Jodhpur City, Jodhpur in Civil Original Case No. 54 of 1991 and allow the application filed by the plaintiff under Order VI, Rule 17, C.P.C. on payment of cost of Rs. 1000/- to the defendant-non-petitioners. The plaintiff shall pay or tender the cost imposed by this Court to the defendants within one month from the date of this order. The plaintiff is directed to file the amended plaint before the learned trial Court within one month from today.