SHAKUNTALA BAI Vs. RAJENDRA KUMAR

JUDGEMENT

(1.) The parties are in loggerheads on the question of amendment in the suit. This matter has a chequered history. Petitioner / plaintiff filed a suit for declaration and permanent injunction. By order dated 14.12.2010 (Annexure P/2) issues were framed by the court below. Issues No. 4, 5 & 6 were decided as preliminary issue by order dated 10.02.2011. Since preliminary issue No.4 was decided against the petitioner / plaintiff, the suit was dismissed. This order passed in Civil Suit No. 3A/2009 dated 10.02.2011 was challenged in First Appeal No. 123/2011. This Court, by order dated 27th November, 2012 allowed the appeal and set aside the order of court below. The trial court was directed to determine all the issues after recording evidence of the parties. On remand, the petitioner filed an amendment application under Order 6 Rule 17 C.P.C on 18.02.2013 (Annexure P/5). It was opposed by the other side. The Court below has rejected the amendment application for the following reasons:-

(2.) Shri B.B. Shukla, learned counsel for the petitioner, criticized the said order by contending that petitioner earlier could not file the amendment application because the suit was dismissed while deciding the preliminary issue. After remand of the matter, he filed the amendment application which needs to be allowed. He submits that amendment does not change the nature of the case. It is necessary for lawful adjudication of the case. It will minimize litigation. Before filing amendment application, the affidavits under Order 18 Rule 4 C.P.C. were not filed and therefore, trial had not commenced. He relied on certain judgments in support of his contention.

(3.) Per Contra, Shri B.D. Jain, Shri S.M. Bhan and Shri R.S. Dhakad submit that court below has not committed any legal error in disallowing the said application. It is contended that amendment will change the nature of the case and it is belatedly filed. In addition, it is submitted that this court in first appeal has directed for deciding the issues. By way of amendment, petitioner is trying to wriggle out of said direction of this court which is impermissible. It is strenuously contended by Shri Jain by placing reliance on (Gopal Vs. Administrative Officer, M.P. Khadi and Village Industries Board and Ors., 1985 JabLJ 730 ) that since remand order is not challenged, the petitioner is bound by the same. He also relied on decision of this Court in WP No. 6775/2012 ( Smt. Hemlata Vs. Smt. Lalita Devi and Ors.)