Supplementary affidavit has been filed today, the same is taken on record.
Heard counsel for the petitioner.
The petitioner has preferred the present petition with the following prayers:-
"I. to set aside the impugned order dated 13.2.2020 passed by Additional District Judge Court No. 7, Varanasi in Civil Appeal No. 56 of 2018 (Hira Lal and another Vs Rambali and others).
II. Issue such other and further order or direction, as this Hon'ble Court, deems just and proper in the disclosed facts and circumstances of the case.
III. Award the cost of the Petition to the Petitioner."
Facts in brief as contained in the writ petition are that the petitioner filed an Original Suit No. 1274 of 1998 (Hira Lal another Vs Chunni Lal and others) in the court of Civil Judge (Junior Division), Havali, Varanasi on 10.12.1998 for the relief of permanent injunction regarding the property in dispute. The aforesaid suit was dismissed by the trial court vide judgment and decree dated 17.03.2018.
Aggrieved against the aforesaid, Civil Appeal No. 56 of 2018 (Hira Lal and another Vs Rajbali and others) was filed by the petitioner. An application for amendment under Order 6 Rule 17 of C.P.C. was filed by the petitioner in the aforesaid appeal. The Order 6 Rule 17 of C.P.C. is reproduced here-in below:-
"17. Amendment of pleadings.- The court may at any stage of the proceedings allow either party to alter or amend his pleading 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."
The amendment application was rejected by the appellate court vide judgment and order dated 13.02.2020, hence the petitioner has preferred the present petition.
It is argued by the counsel for the petitioner that the order passed by the court below is illegal and liable to be set aside.
Counsel for the petitioner relied upon the following paragraphs of the petition:-
"12. That the appeal is continuance of the suit, therefore the suit can be amended even in appellate stage.
13. That the application for amendment is not barred under order 6 Rule 17 of C.P.C. and same is fully maintainable.
14. That there is no delay in filing the amendment application as the appeal is still pending before the lower appellate court.
15. That only the boundaries of the suit property have to be amended and it can not bar that suit can not be amended at the appellate stage.
17. That the court below failed to exercise jurisdiction vested in it as has not properly considered the amendment application of the plaintiff/petitioner."
Heard counsel for the petitioner and perused the record.
From perusal of the amendment application, it appears that amendment application was filed by the petitioner after more than 20 years of the filing of the suit. It is stated in the amendment application that at the time of the preparation of the appeal it transpires by the counsel that certain mistake was taken place in the plaint, as such the amendment is required. The aforesaid amendment application was rejected by the appellate court giving cogent reasons. It is specifically stated that in the order impugned that an amendment application was filed at very belated stage. It is further stated that evidence has already been produced by the plaintiff-petitioner.
No furhter arguments were raised by the counsel for the petitioner.
In this view of the matter, the Court is of the opinion no interference is required in the order dated 13.02.2020.
In view of the same, the present petition is dismissed.
Order Date :- 23.2.2021 Swati