High Court · 2025

Mr. Siddhartha Singh & Mr. D.S. Negi, Advocates for the petitioner.

2. Mr. Neeraj Garg & Mr. Rajendra Arya, Advocates for the respondent. Petitioner filed a suit for permanent prohibitory 3. injunction in March, 2018 against respondent, which is numbered as Original Suit No. 137 of 2018. On 13.07.2023, he filed an application under Order 6 Rule 17 CPC seeking leave to amend his plaint. The said application was rejected by learned Trial Court, vide order dated 07.11.2023. Petitioner challenged Trial Court’s order by filing a revision, which was dismissed by learned District Judge, Dehradun, vide judgment dated 19.12.2024. In this petition under Article 227 of 4. Constitution, petitioner has challenged Trial Court’s order, as affirmed by learned District Judge.

5. In the plaint of the suit, petitioner had pleaded that defendant’s property is on the eastern side of plaintiff’s property and there is a irrigation canal between these two properties and defendant is trying to encroach upon the said irrigation canal, therefore, defendant be restrained from interfering with plaintiff’s the amendment use of application, which petitioner filed in July, 2023, it was alleged that defendant (respondent) has constructed pillars and a gate over the irrigation canal, which needs to be removed, therefore, he sought to add relief of mandatory injunction, through amendment. irrigation canal. In

6. Learned Trial Court rejected the application seeking leave to amend, on the ground that the amendment application does not disclose that, the fact based on which plaintiff has sought leave to amend, was not within his knowledge earlier; the date of alleged construction is not clear from the amendment application; plaintiff’s evidence was closed on 19.04.2023, therefore, in view of proviso to Rule 17 Order 6 CPC, amendment application cannot be allowed, at this belated stage. Petitioner challenged Trial Court’s order in a revision, which was dismissed by learned District Judge by holding that amendment, if allowed, will delay the disposal of the suit. Order 6 Rule 17 CPC is extracted below:- “17. Amendment of pleadings – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application 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.” Proviso to Rule 17 ordains that application for 7. amendment shall not be allowed after commencement of trial 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.

8. Admittedly, trial of the suit filed by plaintiff commenced long back and plaintiff’s evidence has also come to a close. In the application, seeking leave to amend, plaintiff has not made any averment as to whether construction, allegedly raised by defendant, was after filing the suit or before. Therefore, date of raising alleged construction becomes` relevant. Trial commences after issues and after framing of commencement of trial, a party seeking leave to amend, has to satisfy the court that in spite of due diligence the matter sought to be raised by amendment could not be raised before commencement of trial. Since petitioner had not given any particulars 9. about the date, time of alleged constructions, therefore, there was no material to satisfy the Trial Court that petitioner acted with due diligence. The alleged construction, if was existing on the date of filing of the suit, then leave to amend the plaint for adding relief of mandatory injunction cannot be granted more than five years after filing of the suit.

10. Both the learned Courts below have given valid reasons for rejecting application under Order 6 Rule 17 filed by petitioner, therefore, this Court do not find any reason to interfere in the matter while exercising supervisory jurisdiction. Hon’ble Supreme Court in the case of Garment Craft v. Prakash Chand Goel, reported in (2022) SCC 181 has held that High Court while exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence and it is not meant to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. Paragraph nos. 15 & 16 of the said judgment are reproduced below:- impugned order “15. Having heard the counsel for the parties, we are clearly of [Prakash Chand the view Goel v. Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

16. Explaining the scope of jurisdiction under Article 227, this in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Court Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-102, para 6) “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.”

11. For the aforesaid reason, this Court declines to interfere with the order passed by Trial Court as affirmed by Revisional Court.

12. Accordingly, writ petition fails and is dismissed. Navin NAVEEN CHANDRA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3be23325146e76a0642bdf4943fb9046f487df006da82a131bb4e4403d3c0a 15, postalCode=263001, st=UTTARAKHAND, serialNumber=18167EEFB5CA8CFFD421A103819DA875643AF56D653D095C6ED9A 86DAAB21CE5, cn=NAVEEN CHANDRA (Manoj Kumar Tiwari, J.)

20.06.2025