Court No. - 2
Case :- MATTERS UNDER ARTICLE 227 No. - 2391 of 2017 Petitioner :- Rampati Respondent :- Ramrathi And Another Counsel for Petitioner :- Dwijendra Prasad Hon'ble Manoj Misra,J.
Heard learned counsel for the petitioner and perused the record.
The present petition has been filed challenging the order dated 07.12.2016 by which an application 161-Ga to recall the order dated 14.10.2016 has been allowed on cost of Rs.200/-.
A perusal of the record would reveal that the plaintiff Ramrathi had instituted Original Suit No.631 of 1996 in which an application 6-C was filed for temporary injunction. To make certain corrections in the application 6-C, an application was filed which was numbered 156-Ka. The said application 156-Ka was rejected by order dated 14.10.2016 by observing that there is no provision to amend an application because an application would not be a pleading.
It appears that application 161-Ga was thereafter filed by the plaintiff-respondent for recall of the order dated 14.10.2016 by claiming that an application seeking amendment in an application can be considered in exercise of power under Sections 153 and 151 CPC and, therefore, the application 156- Ka should have been decided on merit and should not have been rejected on the ground of maintainability.
By the order impugned dated 07.12.2006, the learned Civil Judge (Junior Division), Jaunpur found that there was some substance in the recall application, accordingly, the order dated 14.10.2016 was recalled and a date was fixed for consideration of the application 156-Ka.
The learned counsel for the petitioner has assailed the order dated 07.12.2016 by claiming that the court below had no power to recall its earlier order dated 14.10.2016 and, therefore, the order impugned deserves to be set aside.
The contention of the learned counsel for the petitioner cannot be accepted in view of the general power vested in a Court, under Section 153 CPC, to amend any defect or error in any proceeding in a suit; and all necessary amendments are to be ordinarily allowed for the purpose of determining the real question or issue raised by or depending on such proceeding.
An application in a suit forms part of a proceeding in a suit and, therefore, under Section 153 CPC the court can allow amendment in an application. The earlier order rejecting the amendment application seeking amendment in an application was under the premise that the amendment can only be allowed in a pleading and since the application would not be pleading, therefore, no amendment can be allowed. The court while rejecting the application had lost sight of the provisions of Section 153 as well as Section 151 CPC, therefore, when it was brought to its notice that it had power to make amendment in the application, the order was recalled.
This Court finds no miscarriage of justice by the order impugned. Rather it serves the ends of justice, accordingly, no case for interference is made out. The petition is dismissed.
Order Date :- 19.4.2017 AKShukla/-