MANOJ JAIN Vs. SUMAN GOYAL

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution of India defendant has challenged the legality, validity and propriety of the impugned order dated 13-3-2013 passed in Civil Suit No. 32A/2011 by II Additional District Judge, Guna. By the aforesaid order, plaintiff's applications under Order VI, Rule 17 and Order VII, Rule 14(3), Civil Procedure Code have been allowed. Plaintiff filed a suit for declaration, recovery of possession and mesne profit inter alia contending that the suit land admeasuring 0.230 hectare falling in Survey No. 20/1 situated in village Chhawani, Patwari Halka No. 76, Tahsil and District Guna was purchased by the plaintiff (hereinafter referred to as 'the suit land'). Out of the aforesaid suit land, 0.139 hectare was transferred through various registered sale deeds and, therefore, plaintiff claimed to be owner to the extent of 0.091 hectare and in the map attached with the plaint in respect of the suit land marked in "green colour". Defendant filed written statement and denied plaint allegations. During pendency of the suit, plaintiff filed an application under Order VI, Rule 17, Civil Procedure Code for amendment in the plaint and map on 11-9-2012 but the same was withdrawn on 9-1-2013. Thereafter issues were framed and parties were directed to lead evidence. Accordingly, plaintiff submitted affidavits of three witnesses who were cross-examined as well. At that stage, plaintiff again filed an application under Order VI, Rule 17, Civil Procedure Code along with an application under Order VII, Rule 14(3), Civil Procedure Code. Reply thereto was filed by the defendant. However, the trial Court by the impugned order has allowed the applications. The aforesaid order has been challenged in this petition by the defendant. Learned counsel for the petitioner has inter alia contended that provisions as regards amendment have undergone change by amendment brought in the Act by the Act of 46 of 1999 w.e.f. 1-7-2002 and are now stringent in nature. The incorporation of such provisions, counsel submits, is in fact with the aim and object to avoid dilatory tactics responsible for unduly delayed trials and ensure speedy trial to subserve the cause of justice. The main trust of submission is on proviso appended to Rule 17, which reads as under:--

(2.) It is submitted that in a situation where the trial has begun and evidence has been led by a party, amendment at his instance can only be allowed if the jurisdictional facts, as deducible from the proviso, are brought on record and the Court comes to the conclusion recording its satisfaction as regards existence thereof and not otherwise. It is contended that; first, a party must plead and prove the facts and circumstances that despite due diligence the matter could not be raised before the commencement of trial; and second, me trial Court has to necessarily address upon such facts and circumstances to reach to the conclusion as regards existence thereof before allowing the amendment. The counsel relies on the judgment of Hon'ble Supreme Court in Abdul Rehman and another v. Ruldu and others, 2012 11 SCC 341 wherein the Hon'ble Supreme Court has held as under:--

(3.) It is submitted that there can be no cavil of doubt that in the instant case the application for amendment has been filed after the commencement of trial.