KALAWATI Vs. VINOD KUMAR

JUDGEMENT

(1.) THE only question raised in this Revision Petition is whether an amendment can be allowed challenging the orders of Hon'ble Supreme Court in which the order dated 21.11.1983 which was under challenge in civil suit had merged.

(2.) THE relevant facts for determining the question raised are that on 30.9.1983, suit for declaration was filed claiming that order dated 21.11.1983 passed by the Rent Controller, Hissar, has been obtained by fraud and mis-representation. It is not disputed that order dated 21.11.1983 was confirmed finally by the Supreme Court by dismissing the special leave petition and maintaining the order of ejectment. The issue with respect to maintainability of the suit was directed to be treated as a preliminary issue while deciding Civil Revision No. 1122 of 1987 on 27.4.1987. Arguments were heard. Orders were reserved on the preliminary issue when the plaintiff-respondent preferred an application under Order 6 Rule 17 and sought a permission to amend the plaint in order to challenge the orders passed subsequent to 21.11.1983 by the Appellate Authority, Revisional Authority and that of the Supreme Court. No other amendment was sought. The amendment has been allowed by the impugned order.

(3.) IN my considered view the judgment cited does not apply to the facts and circumstances of this case at this stage. The judgment may be taken into consideration at the time of disposal of the suit as presently the only controversy before the trial court is whether the plaintiff should be permitted to amend the plaint. Whether the grounds to challenge the order are substantial is not the consideration at the time of allowing the amendment or disallowing the same. Merits of the suit shall be decided after the proposed amendment is allowed. While considering the application for amendment, merits of the proposed amendment cannot be gone into. The Court need not and ought not to go into truthfulness or the falsity of facts or grounds to be added by the proposed amendment. No finding with respect to the merits of the amendment should be given at the time of disposing of the application for amendment. It is only if the amendment is allowed that it can be decided on merits. I find support from 1979 Himachal Pradesh 59 and 1982 Supreme Court 17 wherein it has been observed :-