RIYAZUDDIN Vs. NISARUDDIN

JUDGEMENT

(1.) This petition has been filed by the petitioner/plaintiff under Article 227 of the Constitution of India, against the order dtd. 17/1/2023, passed by the Civil Judge, Senior Division, Ujjain in RCSA No.28-A/2017 whereby, the application filed by the petitioner under Order 6 Rule 17 of the C.P.C., 1908 for amendment in the plaint, has been rejected.

(2.) In brief, the facts of the case are that the aforesaid suit was filed on 15/7/2017, by the plaintiff for injunction only. The suit was contested by the respondents/defendants, and after the evidence was recorded, the learned Judge of the trial court has passed the judgment dtd. 18/7/2019, and dismissed the suit. Against the aforesaid dismissal, the plaintiff preferred an appeal before the District Appellate Court along with an application under Order 41 Rule 27 of the C.P.C. for placing on record the additional documents. The aforesaid application was allowed by the District Appellate Court vide its order dtd. 23/3/2021, and remanded the matter back to the trial court holding that certain issues have not been framed by the trial court which ought to have been framed, and thus, directing the trial court to decide the matter on further additional four issues, and it was also directed that if the trial court so requires, other issues may also be framed and the matter may be decided in accordance with law. When the matter went back to the trial court, the plaintiff filed an application under Order 6 Rule 17 of the C.P.C. seeking amendment of the plaint in respect of the documents, which were filed by him in the application under Order 41 Rule 27 of the C.P.C., which was already allowed by the District Appellate Court. However, the aforesaid application has been rejected by the learned Judge of trial court by the impugned order dtd. 17/1/2023, holding that if the aforesaid application is allowed it would change the nature of the suit, and also on the ground that even though the appellate court has allowed the application filed under Or.41 r.27 of CPC, but after the remand, the application for amendment has to be decided on the general rules of amendment applications, and since the plaintiff had the knowledge of the aforesaid documents, he could have carried out the said amendment earlier also, and in such circumstances, it was held that the application being filed after undue delay, cannot be allowed, as the defendants are likely to be prejudiced by the aforesaid amendments.

(3.) Shri Harish Chandra Tripathi, learned counsel for the petitioner has submitted that the aforesaid documents regarding which the petitioner's application was already allowed by the learned District Appellate Court under Order 41 Rule 27 of the CPC, were required to be pleaded in the plaint itself, otherwise, the application which has been allowed by the Ditrict Appellate Court would not have any meaning at all. It is submitted that the learned Judge of trial court has erred in not taking into account the fact that the District Appellate Court has remanded the matter back with a direction that certain issues may be framed, and certain additional issues may also be framed as the Civil court finds expedient, and the matter was directed to be decided in accordance with law. In such circumstances, it is submitted that the application should have been allowed and should not have been rejected.