This is plaintiff's writ petition who instituted Suit No. 126 of 2001 for permanent injunction to restrain the respondents to raise any construction over the land in dispute and not to interfere in his peaceful possession.
The said suit is still pending. On 17th July, 2006, the petitioner filed an application for amendment of the plaint on the allegations that in the year 2002, the defendants had raised a wall on the disputed land, which was got demolished by the District Magistrate and again in the year 2005, they have raised the said wall and thus obstructed the plaintiff's passage. The said application for amendment of the plaint was rejected vide order dated 22nd November, 2006 which has been confirmed in Civil Revision No. 5 of 2007 passed by the revisional court, the present writ petition has been filed.
Heard Shri S.S. Chauhan, learned counsel for the petitioner and Shri A.K. Dubey, learned counsel for the contesting respondents.
The two courts below have rejected the amendment application on the ground that the said application has been filed after the close of the evidence of the parties. The application is not bonafide one and has been filed after the framing of the issues with considerable delay. The delay has not been explained.
Considered the respective submissions of the learned counsel for the parties and perused the record.
At the very out set, it may be noted that the suit is pending since the year 2001 and the amendment application to incorporate certain averments in the plaint was filed in the year 2006, after the close of the evidence. The two courts below have noted that the suit was filed on the allegations that the property in dispute is vacant piece of land and belongs to the plaintiff and the defendants want to interfere in the plaintiff's possession by raising construction. In the year 2001, a survey commission was issued by the trial court who in his report dated 4th October, 2001 has reported the existence of two walls marked by letter 'B' 'C' and 'C' 'D'.
The case of the defendants is that earlier their kachha house was in existence which had fallen down and they were raising the new wall after laying the foundation which is in existence on the spot. The courts below have concluded that there was a wall in existence in the year 2004. Besides the above, the plaintiff and his witnesses as mentioned in the impugned order have accepted the existence of the wall on the spot.
In the present factual scenario, the two courts below have rejected the amendment application to amend the plaint and rightly so. Even otherwise also in view of the proviso as added in Order VI Rule 17 of the C.P.C., no amendment in the plaint can be permitted, after the trial has commenced, unless court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. It is an admitted position here that the evidence of the plaintiff is closed and the plaintiff's witnesses have accepted the existence of the wall on the disputed land. It has been found as fact that the wall existed in the year 2001 at the time of the inspection of survey commission. On these facts, I do not find any illegality in the impugned orders refusing the permission to the plaintiff petitioner to amend the plaint. The amendment sought for is clearly belated one and there is absolutely no explanation explaining the delay. It is also hit by the proviso as added in Order VI Rule 17 of the C.P.C.
Learned counsel for the petitioner has relied the following cases in support of his submissions.
The decisions relied upon by the learned counsel for the petitioner are not applicable to the facts of the present case and they do not advance the case of the petitioner further.
The cases relied upon by the petitioner are distinguishable on facts and were rendered in a different factual matrix. In the case of Baldev Singh and others v. Manohar Singh and another, 2006 All. C.J. 1892 (Supreme Court), the Apex Court has held that the Principles of amendment of plaint and written statement are different. The amendment of written statement ought to be more liberal.
The case of Andhra Bank v. ABN Amro Bank N.V. And Ors, JT 2007 (9) SC 244, is also a case of amendment of written statement wherein it has been held that the delay is no ground to refuse amendment.
Lastly, reliance was placed on Usha Devi v. Rijwan Ahamd & Ors., JT 2008 (1) SC 564. In this case, the Apex Court has held following its earlier judgment in the case of Sajjan Kumar v. Ram Kishan, 2005 (13) SCC 89, that where the dispute is with regard to description of land, the plaintiff can be permitted to amend the description of the disputed property as it would not change the nature of the case, which is not so here.
In view of the above discussions, there is no merit in the present writ petition the writ petition is dismissed. No order as to cost.
(Prakash Krishna, J) Order Date :- 22.9.2010 MK/