DINESH AND ANOTHER Vs. TEJSINGH & ANOTHER

JUDGEMENT

(1.) BEING aggrieved by the order dated 21/10/2011 passed by 10th Civil Judge, class -I, Indore in civil suit NO. 144 -A/92(old) of which new number is 8 -A/11 whereby the application filed by the respondent No. 1 under Order VI Rule 17 CPC was allowed, the present petition has been filed.

(2.) LEARNED counsel for petitioners submits that impugned order is illegal and deserves to be set aside. It is submitted that scope of trial court was limited as directed by this court. In the facts and circumstances, learned court below committed error in allowing the respondent No. 1 to add a new ground of eviction which was not permissible. For this contention, reliance is placed on a decision in the matter of Rajaram Vs. Vithabai, : 1990 JLJ 71, wherein this court has held that "court to which the case is remanded has to comply with the order of remand." It was further held that acting contrary to order of remand is contrary to law and no amendment can be allowed if not directed." Reliance is also placed on a decision in the matter of Chandmal Vs. Rawatmal, : AIR 1980 Raj 139, wherein Rajasthan High Court held that "When a case is remanded by the High Court to the lower appellate court, it is the imperative duty of the appellate Court to implicitly given effect to the discretion given in the remand order. It has no jurisdiction to go beyond the direction. Refusal to carry out the directions amounts to denial of justice. The position would be different when the appellate court after the remand order is faced with a situation requiring to act under O.41 R.27(1) (aa) or when a subsequent even takes place requiring the Court to take notice of it or there is any other supervening factor whereby the course of action is controlled like change in law whereby it may not be possible to abide by the direction in the remand order. Further reliance is placed on a decision in the matter of Jahurlal Islam Vs. Abul kalam, : AIR 1991 Cal 132 wherein it was held that "where an order of remand was passed under Order 41 Rule 23 -A but the suit was sent back with a direction from the trial court to a definite finding on the main or rather the only point in issue viz. whether the plaintiff, appellant was the Thika tenant/suit land, after allowing the parties to adduce fresh evidence, this direction may cover a bonafide amendment; but, it will not cover filling up of holes in one's case revealed by the first trial viz., an amendment for adding to the plaint the plea of acquisition of title by adverse possession.

(3.) LEARNED counsel further submits that keeping in view the proviso of Order VI Rule 17 CPC, an amendment application which was filed after more than 14 years could not have been allowed as the respondent No. 1 has not assigned any reason for delay. For this contention, reliance is placed on a decision in the matter of Chander Kanta Vs. Rajinder Bansal, : AIR 2008 SC 2234 wherein Hon. Apex Court held that "in amendment of pleadings, liberal principles guide exercise of discretion in allowing amendment. But care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon opposite party under pretence of amendment.