PASTOR CENTRAL METHODIST CHURCH Vs. KAILASH CHAND SAXENA

JUDGEMENT

(1.) By means of the present writ petition under Article 226 of the Constitution of India the petitioner has challenged the order dated 21.12.2002 passed by the Civil Judge (Junior Division), Koil rejecting the amendment application filed by the petitioner seeking the following reliefs:

(2.) The petitioner is a defendant in suit No. 347 of 1998 filed by the plaintiff-respondents for prohibitory and mandatory injunction, inter alia, on the ground that the petitioner-defendant has raised the boundary wall on the property of the plaintiff-respondent. The suit was contested by the defendants No. 2 to 4 by filing a written statement. In paragraph 3 of the written statement, it was specifically mentioned that there was no designated person and, thus, the defendant No. 1 has been wrongly impleaded. In paragraph 16, it has also been pleaded that the suit is barred for mis-joinder of necessary party. It is claimed that at the time of preparation of the case, it transpires that though in the suit for injunction over the said property, the question of title is to be decided between the parties, but the Executive Board of M.G.I. having its registered office at Bombay and who is the owner of the church property (Suit property) has not been impleaded. The said plea was necessary as the suit was liable to be dismissed for non-joinder of necessary party inasmuch as in absence of Executive Board of M.G.I. being party, the question of title between the parties cannot finally be decided and certain other pleas which does not change the nature of the defence were also necessary to be brought on record for full and final adjudication of the controversy involved in the suit. It appears that petitioner was advised to file amendment application seeking amendment in the written statement, and, accordingly, the amendment application was moved on 17.12.2002. It may be mentioned here that the written statement was filed on 20.7.2000. Civil Judge (Junior Division), Koil, Aligarh by his order dated 21.12.2002 rejected the application mainly on the ground that in view of the provision of Order VI, Rule 17 as substituted by Section 7 of the Code of Civil Procedure (Amendment) Act, 2002, the amendment cannot be allowed after the trial has commenced inasmuch as it has not been established that at the time of filing of the written statement, pleading sought to be inserted by way of amendment were not within the knowledge of the defendants.

(3.) Heard learned Counsel for the parties.