SAJI DEVI Vs. PARVATI DEVI AND ANOTHER

JUDGEMENT

(1.) By way of present petition filed under Article 227 of the Constitution of India, the petitioner has prayed for setting aside order passed by the learned trial court dated 12.5.2015 vide which, an application filed by the present petitioner, who is the plaintiff before the learned trial court under Order 6 Rule 17 of the Code of Civil Procedure (in short 'CPC') for amendment of the plaint has been dismissed. As per the petitioner, she has filed a suit for declaration with consequential relief of injunction against the respondent and during the pendency of said suit, she filed an application under Order 6 Rule 17 CPC, vide which amendment was sought for a very limited purpose in view of the fact that as no prayer had been made in the suit with regard to the General Power of Attorney given by the petitioner in favour of respondent No.2, though there were averments in this regard in the plaint. It is further the case of the petitioner that this fact came to the knowledge of her counsel during the course of preparing the arguments. In these circumstances, the application was filed, however, learned trial court has dismissed the same vide impugned order dated 12.5.2105. As per petitioner, the impugned order is prima-facie bad and not sustainable in law because the learned trial court has failed to appreciate that the petitioner had made out a case for permitting her to amend the plaint as per the provisions of Order 6 Rule 17 CPC. It was further contended that the petitioner had specifically pleaded in her application that she was an illiterate and simpleton rustic lady and was influenced by respondent No.2 , her brother, to execute a General Power of Attorney in his favour for the purpose of improvement of soil of the land and its fertility which had been misused and which was later on cancelled by the petitioner. According to her though all these facts were mentioned in the body of plaint but due to inadvertence and oversight, the same could not be mentioned in para 15 of the prayer and it is for this reason that the amendment was sought which fact according to the petitioner has not been appreciated by the learned Trial Court while dismissing her application. Accordingly, it was submitted on behalf of the petitioner that as the order passed by the learned Trial Court was bad in law, the same be set aside and the amendment as prayed for by the petitioner be permitted.

(2.) I have heard learned counsel for the parties.

(3.) In my considered view, there is no infirmity with the order passed by the learned trial Court, vide which it has disallowed the application filed by the present petitioner praying for amendment of the plaint. A perusal of application filed by the petitioner before the learned trial Court under Order 6 Rule 17 CPC demonstrates that in the said application it was nowhere mentioned by the plaintiff as to why amendment which was sought by way of said application was not earlier incorporated. It is not the case of the petitioner that during the pendency of civil suit, some new facts came into her notice which could not have been earlier incorporated in the plaint despite due diligence. The only reason which has been given in the said application due to which the proposed amendment could not earlier incorporated in the plaint was that the applicant was an illiterate and simpleton rustic lady. The suit in issue was filed in the year 2012. The application under order 6 Rule 17 CPC was prepared on 16.2.2015. There is no explanation given in the said application that despite due diligence the plaintiff could not have raised the matter earlier. Order 6 Rule 17 of the CPC provides as under:-