BRAJ BHUSHAN LAL AWASTHI Vs. URMILA

JUDGEMENT

(1.) Heard learned counsel for petitioner and Sri Kirti Kumar Nirkhi, learned counsel for opposite party.

(2.) Learned counsel for petitioner submitted that plaintiff-petitioner has filed Original Suit No. 2 of 1993 along with interim injunction application in the year 1993 for cancellation of sale deed, which was rejected vide order dtd. 8/2/1994. Against the said rejection order, plaintiff-petitioner preferred Appeal No. 173/1994. During the pendency of appeal, plaintiff-petitioner has filed amendment application for amending the plaint. The said appeal as well as amendment application was rejected. Against both the orders, plaintiff-petitioner has preferred Writ Petition No. 28148 of 1998 before this Court, which was dismissed vide order dtd. 17/9/2010. However, liberty was given to the plaintiff-petitioner to file amendment application before the Court below. It is next submitted that in compliance of order dtd. 17/9/2010, plaintiff-petitioner has filed amendment application in Original Suit No. 2 of 1993 under Order VI Rule 17 read with Sec. 151 CPC on 8/4/2013. In amendment application, he has clarified the facts and also brings on record certain new facts, which was not in his knowledge at the time of filing of plaint. Opposite party has also filed objection and trial Court vide order dtd. 11/7/2013 has dismissed the amendment application on the ground of delay. Aggrieved by the order dtd. 11/7/2013, plaintiff-petitioner has preferred Civil Revision No. 25 of 2013 before the District Judge on 15/2/2014, which was also dismissed vide order dtd. 1/12/2021 without considering the facts of the case. Hence the present petition.

(3.) Learned counsel for petitioner submitted that plaintiff-petitioner has challenged the orders dtd. 1/12/2021 as well as 11/7/2013 basically on the ground that under Order VI Rule 17 of CPC, amendment application may be allowed at any stage of proceedings and the same cannot be rejected only on the ground of laches. Such dismissal order preclude the plaintiff-petitioner from justice. It is next submitted that while rejecting the amendment application, it is required on the part of Court below to see as to whether it is filed with ill intention or with clean hands. Court below was also required to see as to whether in case of rejection of amendment application, either of the parties would suffer from injustice or not, therefore, in the larger interest of justice, ignoring the delay, amendment application has to be allowed. In support of his contention, he has placed reliance upon the judgment of Apex Court passed in the matter of Prithi Pal Singh and another vs. Amrik Singh and others; 2013 0 Supreme(SC) 158 decided on 13/2/2013 and submitted that amendment application may be allowed even at the second appellate stage. Further, he has placed reliance upon the judgment of Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. and Ors.; 2012 0 Supreme(SC) 270 decided on 30/3/2012 and submitted that while considering the amendment application filed under Order VI Rule 17 of CPC, it is required on the part of Court below to take liberal view. In the matter of Mahila Ramkali Devi and others vs. Nandram (D) Thr. Lrs. and others; 2015 0 Supreme(SC) 438 and Mount Mary Enterprises vs. M/s. Jivratna Medi Treat Pvt. Ltd.; 2015 0 Supreme(SC) 89 decided on 30/1/2015, Apex Court has held that if amendment application has not been filed with malafide intention, it is required on the part of Court below to take liberal view. He further submitted that in the matter of B K Mittal vs. Sakya Centre Society and others; 2010 LawSuit(Utt) 1559 decided on 17/9/2010, High Court of Uttaranchal has also taken same view and held that amendment application cannot be rejected on the ground of delay, in case there is no injustice.