SANTLAL Vs. RAMKEWAL

JUDGEMENT

(1.) Heard Sri Manish Kumar Nigam, learned counsel for the petitioner and Sri Awadhesh, learned counsel for the respondents.

(2.) The petitioner plaintiff has filed this writ petition challenging the orders of the trial court and the revisional court rejecting his application under Order VI Rule 17 for amendment of the plaint.

(3.) The petitioner plaintiff filed a suit bearing O.S. No.685 of 2004 seeking permanent injunction against the respondents defendants from interfering in his peaceful possession on the sahan and passage as demarcated in the map annexed with the plaint and for not making any construction therein. The Court Amin was directed to submit survey report and he submitted the said report on 17.07.2004. On 11.08.2004, a temporary injunction was granted directing the parties to maintain status quo. Issues were framed in the suit on 21.05.2008. According to the petitioner plaintiff, the respondents defendants raised certain constructions after filing of the suit but prior to submission of the report of the court Amin and thereafter again in October, 2009. The Court Amin's report was affirmed subject to evidence on 07.12.2009. After the submission of the affidavit and examination in chief of P.W.-1 under order XVIII Rule 4, his cross-examination took place on 02.09.2012. Thereafter, the affidavit under Order XVIII Rule 4 of P.W.-1 was also filed. On 21.02.2012, an application for amendment of the plaint was filed by the petitioner plaintiff alleging about the aforesaid constructions having been raised by the respondents defendants. The prayer clause was sought to be amended by including a prayer for mandatory injunction directing the defendants to demolish the construction raised by them and for handing over possession to the plaintiff etc. A prayer for deleting the entire map annexed with the plaint and to substitute it by another map, a copy of which was annexed with the amendment application, was also made apart from other amendments sought. The trial court rejected the application for amendment vide 24.05.2013 firstly on the ground that the same had been filed only to delay the suit proceedings and that it was barred by limitation. The trial court took note of the fact that certain fresh constructions on the land in question were mentioned in the report of the court Amin submitted in the year 2004 itself but the plaintiff did not deem it necessary to amend the plaint. The alleged subsequent construction is also stated to have taken place in October, 2009 despite the operation of the status quo order but the plaintiff neither initiated any proceedings under Order XXXIX Rule 2A nor filed any application to amend the plaint. He waited for three years before moving the application dated 21.02.2012. For the aforesaid reasons, the trial court rejected the application. Being aggrieved, petitioner plaintiff filed a revision being Civil Revision No.118 of 2013. The said revision has also been dismissed on 15.05.2014. The revisional court has taken into consideration the provision contained in the proviso to Order VI Rule 17 as inserted w.e.f. 01.07.2002 and has held that the plaintiff has failed to establish that the prayer for amendment in question could not be raised before the commencement of the trial, in spite of due diligence on his part. The trial court has held that plaintiff did not exercise due diligence and in spite of being aware of the relevant facts, chose to file an application for amendment only on 21.02.2012, i.e. eight years after filing of the suit. The revisional court has also held that the scope of revision is very limited and in the facts and circumstances of the case, the order of the trial court dated 24.05.2013 rejecting the amendment application cannot be said to be erroneous.