DEV SWAROOP Vs. DISTRICT JUDGE, ETAH

JUDGEMENT

(1.) By means of the present petition, the order of rejection of amendment application passed by Special Judge S.C./S.T. Act Etah in Civil Appeal 54 of 2015 arising out of original suit pending before the District Judge, is under challenge. A suit for declaration and permanent injunction was filed against defendant Than Singh whcih was registered as Original Suit No. 467 of 2002. The said suit was decreed on 13.05.2015. An appeal under Order 41, Rule 1 and 2 of the CPC has been filed which is pending before the Special Judge (S.C./S.T.) Act Etah. In appeal, the amendment application under Order 6, Rule 17 was filed for amendment in the plaint relief which has been rejected by the order impugned dated 15.04.2017. The original relief prayed in the suit is as follows:- ...[VERNACULAR TEXT OMITTED]...

(2.) The submission of learned counsel for the petitioner is that the amendment could not have been rejected by the order impugned for the reasons that the dispute being raised by the petitioner/plaintiff regarding the validity of the sale deed dated 27.3.2002 allegedly executed in favour of defendant No. 1 can very well be decided in the pending appeal. On account of rejection of amendment, the petitioner would suffer grave and irreparable loss and injury. The court below has erred in rejecting the amendment application on the ground that the claim of the plaintiff which has become time barred cannot be allowed by way of amendment.

(3.) The plain reading of the said provision shows that the amendment of pleadings which may be just and necessary for the purpose of determining the real question and controversy between the parties cannot be rejected. However, the amendment which would be unjust so as to prejudice the interest of the other party for which other party cannot get any relief from the court must be rejected. In deciding whether the amendments are necessary to determine the real question in controversy between the parties, the court has to look to the pleadings of the parties. In case of amendment of plaint, the pleadings therein and to some extent, the averments in written statement are to be examined. It has to be determined by the court that whether the amendments sought in the pleadings is covered by the controversy raised in the plaint or in the written statement, as the case may be. Any pleading which is not necessary for determining the real controversy between the party cannot be allowed by way of amendment. It is the discretion of the Court, before whom the amendment is sought, to decide whether the amendment is necessary to determine the controversy raised before it.