MANSI DEVI Vs. RAM KISHAN

JUDGEMENT

(1.) THIS petition, filed under Article 227 of the Constitution of India is directed against the order dated 30.4.2003 passed by the Addl. Civil Judge (Sr. Division), Jagadhri dismissing the application of the plaintiff-petitioner filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for brevity 'the Code') seeking amendment of the plaint.

(2.) THE plaintiff filed a suit in the year 1994 seeking declaration to the effect that he is owner in possession of the suit land and the judgment and decree dated 26.3.1994 is illegal, null and void. Plaintiff-petitioner being father of the defendant-respondents have requested them to vacate the land in dispute but in vain. Thereafter, plaintiff has requested by an application under Order 6 Rule 17 of the Code to amend the plant by including the relief of possession with mesne profits. The application was contested by raising an objection that the proposed amendment is time barred as mesne profits have been claimed since 1994 and the plaintiff-petitioner could have claimed the same within a period of three years. It has further been pleaded that the amendment of the suit is inconsistent with the plea raised by the plaintiff- petitioner in para 3(ii) of the plaint wherein it is claimed that he is in possession of the suit land. The trial Court after hearing the parties dismissed the application on 30.4.2003 and the operative part of the order reads as under :

(3.) AFTER hearing the learned counsel at some length and perusing the impugned order, I do not feel persuaded to take a view different than the one taken by the trial Court because in the application mesne profits have been claimed w.e.f. 1994 which belies the stand of the plaintiff-petitioner that he has been dispossessed after the passing of the decree dated 10.5.2000. It has become evident that the plaintiff-petitioner was not in possession on the date when he filed the suit in 1994 and the fact that he was not in possession was in his knowledge. However, the plaintiff-petitioner preferred to claim the relief that he is owner in possession of the suit land and the judgment and decree dated 26.3.1994 is illegal, null and void. The amended provisions of Order 6 Rule 17 of the Code categorically provides that if the fact was within the knowledge of a party at the time of filing the pleadings then no amendment is to be allowed. Order 6 Rule 17 of the Code, as amended, reads as under :