Kisna Ram v. Ramesh Chandra) Date of Order & Anr.

Mr. Vinit Sanadhya on behalf of Mr. Rajesh Parihar, for the petitioner. Mr. Amit Mehta, for the respondents. In this writ petition filed under Article 227 of the Constitution of India, the petitioner has challenged the order dated 13.1.2010 (Annex.15) passed by District Judge, Jalore and prayed that application filed by the petitioner under Order 6 Rule 17 of CPC may kindly be allowed and amendment sought by the petitioner may be allowed as prayed. Upon perusal of the entire writ petition, it is revealed that in a suit filed by the petitioner before the Civil Judge (SD), Jalore, final judgment was delivered on 27.2.2002 whereby the suit of the petitioner was dismissed and cross objections filed by the respondents-defendant were allowed whereby the decree of permanent injunction was passed in favor of the respondents 2 defendants. Against the aforesaid judgment dated 27.2.2002, an appeal was preferred before the District Judge, Jalore and in appeal an application under Order 6 Rule 17 of CPC is filed for amendment in the suit. Learned appellate Court after taking into consideration entire facts of the case dismissed the application filed by the petitioner for amendment vide order dated

13.1.2010 (Annex.15) while considering the fact that for desired amendment, the trial Court has already given finding, therefore, at appellate stage, no permission can be granted to amend the suit. In my opinion, after adjudication of particular issue by the trial Court in the suit filed by the petitioner plaintiff, no amendment can be allowed at appellate stage, therefore, the learned appellate Court has rightly rejected the prayer of the petitioner for amendment of the suit for the reason that finding upon the desired amendment has already been given by the trial Court in the judgment. Recently, the Hon'ble Supreme Court in Shalini Shyam Shetty's case reported in (2010) 8 SCC 329 held that interference under Article 227 of the Constitution of India is 3 required to be made in rarest to rare case and the said power should not be exercised in casual manner. While following the judgment of Hon'ble Supreme Court in case of Shalini Shyam Shetty (supra) and perusing the reasons for rejecting the application under Order 6 Rule 17 CPC, I am of the opinion that no error has been committed by trial Court in rejecting the application filed at appellate stage in appeal for amendment of the suit. In this view of the matter, no case is made out for interference. Hence, this writ petition is hereby dismissed. (Gopal Krishan Vyas), J.