Abhijeet Bos v. Ajay Jain & Ors.

Judgment

4. Ajay Jain, Aged about 39 years, S/o Shri Mohanhi Jain. Deepak Kuniar Jain, Aged about 33 years, S/o Shri Mohonial Jain. Smt. Archana Jain, Aged about 36 years, W/o Shri Ajay Jain. Smt. Kamna Jain, Aged about 29 years, W/o Shri Deepak Jain, All R/o Bastar Road Dhamtari, Tahsil & District Dhamtari (C.6.) PETmON UN&Eft ARTECLE 227 OF THE CONSTTTUTEON OFIN&IA

Present: Shri Kishore Bhaduri, counsel for -the Shri MtinoJ Paranjape, counsel for the respondents. petitioner. SB: HON'BLE SHRI JUSTICE N.K. A6ARWAL OR &ER (Passedont? -08-2009) The instant petition is directed against the order dated 17-10-2007 passed by District Judge, Dhomtari in Civil Suit Ne. 3-A/2006 whereby ond whereunder the cxpplication for amendment in the plaint preferred by the respondents/plaintiffs was altowed by the Court beiow. l@.i» fii'^ ^,.^-^.Si &,

2. Brief facts of the case are that on 17-10-2005, pkiintiffs (respondents herein) filed a suit for ejectment ond arrears of rent against the defendcmt (petitioner herein). The phintiff's case in brief is that the plaintiffs purchased 1he aiit property including suit shop vide registered sale-deed dated 08-07-2004 and 26-08-2004 from one Nween Patel S/o Late Bakor Bhai Patel and acquired its title. The defendant/petitioner denied the derivative title of the plaintiffs in the written statement filed by him on 09-01-2006.

3. After filing of writt'en statement by the defatdant, the plaintiffs moved wi apptication under Order 6 Rule 17 C.P.C. for adding ground of eviction under Section 12(l)(c) of Chhattisgarh Accommodation Control Act (hereinatfter referred to as the Acf) on the premise that the petitioner defendant denied the ptaintiffs' title. Again one more applicatwn for amendment under Order 6 Rute 17 CPC was filed by the re^aondents on 28-02-2006. It seems that both the cpptications were allowed by •tiie Court below and thesaid amendments were incorporated in the »- plaint.

4. Thereafter) the case was fixed for evidence and one witness of the ptaintiffs wasexamined.

5. At this stay, the plaintiffs again moved an application for amendment of the ptaint under Order 6 Rule 17 CPC in order to ehborate the pleadings with regard to their title on the ground 1'hat the said amendment is necessary for just decision of the case ond the aime does not diange the nature of the suit.

6. The petitioner vehemently opposed the said amendment on theground that in terms of proviso to Order 6 Rule 17 of CPC, r»w the Court has no jurisdiction to atlow the amendment after commencemenT of the trial unless the Court comes to the conclusion that in spite of due dili9ence, the party could not have raised the matter before •ttie commenceinent of trial

7. The Court below after considering the submissions made by tiie pcrties and even after noticing the proviso to Order 6 Rule 17 CPC, allowed the amendment holding that the amendment ctarificatory in nature and is necessary to avoid unnecessary objections which may be raised at the time of evidence and as such the requirement of the proviso to Order 6 Rute 17 CPC is satisfied hence this petition. Shri Kishore Bhaduri, leamed counsel for the petitioner 8. would submit -that immediaTely after fiting of written statement by the petitioner, amendment which as per them were nscessory the respondents filed two applications for 'n •the light of '% »] averments made in the written statement. Thereafter, amendment in question was sought after a lapse of a period of l^ years tfiat too after commencement of trial wdiich is neither bona fide nor could have been atlowed by the Court below in view of the embargo placed by the proviso to Order 6 Rule 17 CPC, as the respondents faited to assign any reason to nu'se the same after commencement of trial. As per Shri Bhaduri, th®facts regording title of the plaintiffs over suit diop is wetl within their knowledge on the date of its purchase and in such situation, the Court will have no jurisdiction at all to allow •the amendment of the plaint and, impugned having been passed without therefore, •ttie order jurisdiction is deserves to be set aside.

9. Per contra, Shri Manoj Paranjape, learned counse! for Ihe respondents/piaintiffs would aibmit that the said amendment is clarificatory in nature and does not cdwnge the nature of -Hie suit and thus no prejudice is 9oin9 to be caused to the petitjoner and the tr-ial Court- in its wide discretion, allowed the epplication for amendment which should not be interfered by Ihis Court exercise of extra-ordinary jurjsdiction under Article 227 of the Constitution of India. By placing reliance upon the decision of the Supreme Court in case of Surya l>ev Rai vs. Ram Chandw Rai; reported in (2003) 6 SCC 6TO. he would submit supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Court within •the bounds of their Jurisdiction. When a subordinate Court hos assumed n jurisdiction which it does not have or hus failed to exercise a jurisdiction which it does have or the jurisdiction though wailable is being exercised by the Court in a manner not permitted by tow and failure of justice or grave injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction. As such situation does not arise in the facts situation of the present case, so the petition deserves to be dismissed. ^

10. I have heard learned counsel for the part-ies and perused the record.

11. It is not in dispute that the cyplication for amendment has been moved after commencement of triat.

12. Before considerin9 the rival submissions mode by the parties, it would be appropriate to advert to the proviso to Order 6 Rule 17 of CPC. Order 6 Rute 17 CPC reads as under: "Order 6 Rute 17 Amendment of pleadings.- The Court may at any stage of the proceedings aliow either party to alter or amend his in such nianner and on such terms as may be just; and all such amendments diall be made as may be necesstiry "pleadings ya\ % s •~f:^-»'-^ s""^.f! ^- for the purpose of determinin9 the real questions in controversy between •the parties. Provided that no opplication for amendment shall 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 before the commencement of trial."

13. A bare readin9 of the proviso would reveal that the proviso enacts embargo/Bar against granting relief commencement of triat unless the Court come To the conclusion that in spite of due diligence, the party could not have raised 1+ie matter before commencement of trial.

14. The Supreme Court in case of Vidyabai and Otfiers vs. Padmalatfia and wwfher: reported in (2009) 2 SCC 409 in para 19 has observed as under: "19. It is the primal duty of the court to decide as is necessary to to whether such an amendment decide the real dispute between tiie parties. Only if such a condition is fulfilted, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the powerof the Court. It puts an embargo on exercise of its Jurisdiction. The Courfs jurisdiction, this nature is Thus, unless the jurisdictiona! limited. fact, as envisaged therein, is found to be existing, the Court to ullow the omendment of the plaint. hon/e no jurisdiction to all in a case of

15. The aforesaid proposition of law is binding on this Court. By apptyin9 aforesaid proposition of law to the fact of the present case, it is clear that the plaintiffs/respondents hove not assigned any reason whatsoever why they coutd not have raised the matter before the commencement of trial? The fact of title acquired by them frorn their vender Naveen Patel was well within their ^.'•-•^-'.^ ' " ^%^"%, .!'!- fe. ^> '-SSfe. 'i i^""":i': i F ?!• \^Ji^^t- ./i • knowledge since jnception. After filing ef written statement by the petitioner, the respondents have filed two amendment applications in which too they coutd have raised the matter which 1+iey did not and only after commencement of triat, they hwe applied for the said amendment for whjch as per the position of law asttled by the 5upreme Court, the Court- do not have any jurisdiction to atlow the apptication. Therefore, in the considered opinion of •this Court-, the order being without jurisdiction deserves to be cnd is hereby set aside and the application for amendment is rej'ected.

16. It is directed Ihat the trial Court' diall proceed to decide the suit in accordance with law on its own merits expeditiously.