Court No. - 9
Case :- CIVIL REVISION No. - 174 of 2018 Revisionist :- Narendra And Another Opposite Party :- Sheela Counsel for Revisionist :- Mahendra Pratap,Buddha Prakash Counsel for Opposite Party :- Mohan Srivastava
Hon'ble Anjani Kumar Mishra,J.
Heard Shri Mahendra Pratap, learned counsel for the revisionist as also counsel for the caveator - opposite party.
The instant revision is directed against the order dated 06.07.2018 passed by the Civil Judge( Senior Division), Hapur in Original Suit No.466 of 2011, whereby an application filed by the plaintiff opposite party for amendment of the plaint has been allowed.
Assailing the order impugned, the contention of counsel for the revisionist is that it is hit by the proviso to Order 6 Rule 17 CPC.
It is secondly submitted that the amendment was wholly and completely unnecessary as it was beyond the scope of the suit itself. Therefore, also the amendment application should not have been allowed.
The third submission raised is that a detailed objection had been filed by the revisionist to the amendment application but the contentions raised therein have not been considered by the trial Court while allowing the amendment application.
The last contention is that a specific finding should have been recorded by the trial Court that the amendment sought to be incorporated could not have been sought despite exercise of due diligence by the plaintiff prior to the commencement of trial.
Counsel appearing for the caveator has supported the impugned order.
The facts relevant for deciding the controversy in this revision are that the plaintiff opposite party filed Suit No.466 of 2011, which appears to be a suit for rectification of the sale deed executed by the revisionist in favour of the plaintiff opposite party. The rectification sought was for incorporation of plot no.649M area 170 sq. meters and for mentioning /correcting the area of plot no.648M in the sale deed The revisionist himself is stated to have filed two suits. The first being Suit No.466 of 2011 for cancellation of the sale deed, wherein the opposite party has sought rectification. The second suit, Suit No.89 of 2011 is for injunction restraining the opposite party in this revision from interfering in revisionists possession over plot no.649M area 170 sq. meters.
It is not an issue that all the three suits have been consolidated and are being heard together.
It is also not in dispute that in respondents suit No.466 of 2011, an order of status quo is operating. It is also not in dispute that three applications under Order 39 Rule 2A alleging violation of this order of status quo have also been filed by the opposite party.
The first of three applications was filed in the year 2014, wherein it has been alleged that on 04.07.2014, a khokha had been put by the revisionist over plot no.649M.
The second application was filed alleging that constructions having been raised over plot no.649M on 03.04.2015. Again by the third application, further violation of the order of status quo was alleged on the ground that certain constructions had been raised and a gate had been errected on 20.04.2016.
It has also not disputed that the issues were struck in Suit No.466 of 2011 on 31.01.2012, it is therefore, clear that all the alleged violations are of dates subsequent to the striking of the suit in Suit No.466 of 2011.
It, therefore, also stand established that the amendment, which has been allowed, not only incorporates certain averments in the plaint but also seeks incorporation of a relief for mandatory injunction, for removal of these constructions raised during the pendency of the suit. They are based on subsequent developments, which has been taken place after institution of the suit and after the issues have been struck therein. Such an amendment therefore, in my considered opinion, would not be hit by the proviso to Order 6 Rule 17 CPC.
Something that has taken place after the issues had been struck would necessarily be something, which could not be in the knowledge of the plaintiff opposite party, despite exercise of due diligence on the date, the issues had been struck.
It is also the settled legal position of law that the trial of the suit commences on the date, the Court frames the issues to be decided between the parties.
Under the circumstances, therefore, the first contention of counsel for the revisionist that the impugned order is hit by the proviso to Order 6 Rule 17 does not have any merit.
The second contention is that the objection raised by the revisionist while opposing the amendment application have not been considered by the trial Court. This Court finds that the order impugned is not happily worded, but since the objections have been duly considered by this Court, and found to be without substance, no useful purpose will be served by remanding the matter to the trial Court for deciding the amendment application afresh. In any case, the net result in my considered opinion, will still be the same. Therefore, any interference of the ground submitted will only unnecessarily delay the disposal of the suits. themselves.
For the same reason, argument that no specific finding has not been returned by the trial Court that the amendment could not have been sought at the pretrial stage is also without substance. From the facts, it is clear that the amendments, which have been permitted by the order impugned, incorporates events, which allegedly took place after the issues have been struck.
Counsel for the revisionist has also placed reliance upon a decision of the Apex Court in Vidyabai and others Vs. Padmalatha and another (2009) 2 Supreme Court Cases 409, especially paragraphs 10,11, 19 and 20 thereof.
In paragraph 11 of the judgement cited, it has been opined that the date on which the issues are framed is the date of first hearing. This necessarily means that the date of framing of issues is the date of commencement of the trial.
In paragraph 19 of the judgement cited, the Apex Cour has held that before allowing an amendment, the Court is required to consider whether the amendment sought is necessary for deciding the real controversy between the parties. In this context, this Court finds that not only the amendment allowed incorporates the facts and dates regarding alleged violation of the interim injunction order operating in the suit, it is also permitted incorporation of the relief for mandatory injunction for removal of the constructions, which have been raised during the pendency of the suit and in violation of the order of the status quo operating therein. The paragraphs incorporated by amendment are, absolutely essential because no relief or mandatory injunction can be claimed, without requisite facts have been pleaded in the plaint.
In view of the above, the revisionist is not entitled to any benefit from the judgement cited by him, which in my considered opinion, in fact holds against him.
In view of the foregoing discussion, this Court does not find any justification to interfere with the impugned order, which suffers from no jurisdictional error.
The revision is accordingly, dismissed.
Order Date :- 25.9.2018 RKM Digitally signed by ANJANI KUMAR MISHRA Date: 2018.09.26 10:31:59 IST Reason: Document Owner Location: High Court of Judicature at Allahabad