DEVENDRA SADHO Vs. SMT.PRAMILA KUMAR

JUDGEMENT

(1.) By the instant petition filed under Article 226 of the Constitution of India, the petitioner is challenging the validity of the order passed by the trial Court dtd. 10/3/2021 (Annexure-P/1) allowing the application filed by the plaintiff/respondent No.1 under Order 6 rule 17 of the Code of Civil Procedure, 1908 in a pending suit.

(2.) Shri Pushpendra Yadav, learned counsel appearing for the petitioner has submitted that the application filed by the plaintiff/respondent No.1 under Order 6 rule 17 of CPC seeking amendment in the plaint ought to have been rejected by the trial Court for the reason that the suit had been filed for declaration and permanent injunction not claiming any possession, but by way of amendment the plaintiff/respondent No.1 has claimed relief of possession also and the said relief was apparently time barred, therefore, the same cannot be claimed by the plaintiff/respondent No.1 by way of amendment. He has also submitted that the amendment made in the plaint changed the nature of suit. He has further submitted that the issue has already framed and affidavit under Order 18 rule 4 of CPC has also submitted by the plaintiff/respondent No.1 and when the application for dismissal of suit was filed raising a ground that the suit for declaration is not maintainable as the consequential relief of possession has not been claimed then only the plaintiff/respondent No.1 has moved an application for amendment for filling-up the lacuna, especially under the circumstances when trial has already commenced and plaintiff/respondent No.1 in her application did not disclose due diligence for not filing the amendment in time and as such, as per the proviso appended with the respective provision i.e. Order 6 Rule 17 of CPC, the application cannot be allowed and as such, the petitioner has challenged the order passed by the trial Court dtd. 10/3/2021 (Annexure-P/1) allowing the application of the plaintiff/respondent No.1 for amendment.

(3.) Shri Yadav in support of his submission has placed reliance upon the judgment of Supreme Court reported in (2008) 14 SCC 364 (Rajkumar Gurawara (Dead) through LRS. v. S.K. Sarwagi and Company Private Limited and Another) and also the orders passed by this Court in case of Smt. Preeti Agrawal v. Kamta Prasad Patel and others (M.P. No.4693 of 2022) and Vikas Pandey and Others v. Sureshchandra Shrivastava (M.A.No.810 of 2012).