PADAM CHAND JAIN Vs. MAHAVEER PRASAD JAIN

JUDGEMENT

(1.) The present petition has been filed challenging the order dated 17.05.2019 passed in Civil Suit No.1A/2013 whereby the application filed under Order 6 Rule 17 of CPC for amendment in the plaint owing to a subsequent development and change in the circumstances have been rejected by the learned trial Court without considering the aspect that the same is contrary to law and owing to the subsequent development and changes the application should have been allowed.

(2.) It is alleged by the counsel for the petitioners that a civil suit for declaration and permanent injunction was filed before the trial Court on the count that the plaintiffs and defendants are members of joint Hindu family and family was governed under the Mitakshara Hindu Law KE Banaras School. It is submitted by the counsel for the petitioners that the civil suit was filed wherein the learned trial Court vide its judgment and decree dated 24.12.2004 has dismissed the suit of plaintiffs. An appeal was preferred against the judgment and decree dated 24.12.2004 which was registered as First Appeal No.36-A/05 and the lower appellate Court vide its judgment and decree dated 5.3.2005 has set aside the judgment and decree passed by the learned trial Court and the suit was decreed in favour of the petitioners. A second appeal was preferred which was registered as Second Appeal No.451/2005 and the second appeal was finally heard and decided by the Hon'ble High Court on 8.9.10 and the judgment and decree passed by the learned first appellate Court was set aside and the matter was remanded back to the appellate court for hearing on merits. The first appellate court after rehearing of the first appeal has passed the judgment and decree dated 12.12.2012 and has remanded the matter back to the trial Court for the reason that sisters being a daughter of late Shri Badri Prasad are necessary and proper party to the present case as Anguri Devi was not impleaded as a party therefore the matter was remanded for impleading Anguri Devi and sisters as a party with a direction to permit them to lead evidence and thereafter decided the civil suit on merits. In pursuance to the aforesaid remand order the civil suit is still pending before the trial Court. An application under Order 1 Rule 10 was filed before the trial court which was allowed by the trial court on 7.12.2018 and thereafter the written statement was filed by the newly added parties and the matter was fixed for hearing on 28.01.19. The newly added parties have filed the written statement and a counter claim on 23.03.2019. Thereafter, an application under Order 6 Rule 17 was filed for amendment in the plaint in view of the changed circumstances as the newly added defendants have filed the counter claim against the plaintiff. It was alleged that the amendment is required in the plaint in the changed circumstances as certain documents filed by the newly added defendants are required to be countered. The learned trial Court after due consideration of the application and hearing the arguments has rejected the same for the reasons that the plaintiff was having the knowledge of the facts which are proposed to be amended from the very beginning but he has not chosen to incorporate the aforesaid in the plaint memo. It was further observed by the trial Court that in response to the counter claim filed by the defendants, the plaintiff has mentioned all these facts in their response. Therefore, once the aforesaid facts are already placed before the Court in reply to the counter claim filed by the defendants there is no requirement of repetition of the aforesaid by way of amendment in the plaint. Accordingly, finding the amendment not useful in the plaint the learned trial Court has rejected the application vide its order dated 17.05.2019. Counsel for the petitioners has submitted that the aforesaid order is per se illegal and contrary to the settled position of law. He has relied upon the judgment passed in the cases of Vijay Hathising Shah and Another Vs. Gitaben Parshottamdas Mukhi and Others, reported in 2019 (5) SCC 360 and Gurbakhsh Singh vs. Buta Singh and another, reported in 2019 (1) MPLJ 269 and has prayed for setting aside of the impugned order and allowed the application filed by the plaintiffs.

(3.) Per contra the counsel appearing on behalf of the respondents has contended that the order impugned is rightly being been passed and does not call for any interference under Article 227 of the Constitution of India. He has further contended that the learned trial Court has observed that the verbatim of the proposed amendment and that of the reply to the counter claim are exactly identical, therefore, the learned trial Court has rightly observed that the same will amount to the repetition of the facts which have already been brought before this Court. The learned trial Court has observed that the proceedings of both the matters will run simultaneously. Therefore, once the aforesaid facts have already been brought on record by way of reply to counter claim there is no requirement of amendment in the plaint. It is further contended that the aforesaid facts were very well in the knowledge of the plaintiff from the very beginning but he has chosen not to incorporate the same in the plaint memo. Thus, the same will not create any difference in the evidence. Accordingly, the learned trial Court was justified in rejecting the application. He has prayed for dismissal of the writ petition.