NEETUMAL Vs. DHANVATI AND ORS.

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed against the order dated 19.09.2019 passed by Civil Judge, Class-I, in Civil Suit No.4A/2011, by which application under Order 6 Rule 17 of CPC filed by the petitioner has been rejected.

(2.) The necessary facts for disposal of this petition in short are that father of petitioner Late Shri Hariram Balecha filed a civil suit for declaration of right and permanent injunction against the respondents. The civil suit filed by the father of petitioner was dismissed by the trial Court by judgment decree dated 28.09.2013 against which the present petitioner filed an appeal which was registered as RCA No.600079A/2015. In the said appeal, petitioner had filed an application under Order 6 Rule 17 of CPC and application under Order 41 Rule 27 of CPC seeking amendment of the plaint on the basis of the Will and the copy of Will was also filed alongwith application under Order 41 Rule 27 of CPC. The appellate Court by order dated 12.07.2019 considered the application under Order 6 Rule 17 of CPC as well as application under Order 41 Rule 27 of CPC and after considering the direction given by this Court in W.P. No.2356/2016 allowed the application under Order 41 Rule 27 of CPC and took the documents on record. However; it appears that by mistake the application under Order 6 Rule 17 of CPC which was filed for amendment in the plaint, was not decided and the matter was remanded back to the trial Court for fresh adjudication as expeditiously as possible. It is not out of place to mention here that the respondents have filed MA. No.4816/2019 against the order of remand and according to the learned counsel for the respondents, photocopy of the record of Courts below has been summoned. However, the notices have not been issued so far.

(3.) It is submitted by the learned counsel for the petitioner that petitioner had also filed an application under Order 6 Rule 17 of CPC before the appellate court and by order dated 12.07.2019, the appellate court did not reject the said application, but it appears that due to oversight, the application could not be decided, although there is a reference of the said application in the order. It is further submitted that once the appellate court had directed to take the documents on record which were filed alongwith the application under Order 41 Rule 27 of CPC then same cannot be considered unless and until there are pleadings in the plaint. Therefore, in order to avoid any complication, the petitioner had filed an application under Order 6 Rule 17 of CPC for amendment in the plaint, but the trial court has rejected the same on the ground that amendment is not in accordance with the provisions of Order 6 Rule 17 of CPC as it has been filed belatedly and after the commencement of the trial. It is further submitted that the trial court lost sight of the fact that once the appellate court itself had taken the documents on record, then it becomes mandatory on the part of the plaintiff to amend the plaint because the application which was filed by him before the appellate court remained undecided due to oversight. Under these circumstances, it is submitted that in the light of the order passed by the appellant court on 12.07.2019, the trial court should have allowed the amendment in the plaint.