RASHID Vs. AMAR SINGH RATHORE AND ANR.

JUDGEMENT

(1.) BY way of the instant writ petition, the petitioner has beseeched to quash and set aside the order dated 4th May, 2010, whereby the learned Civil Judge (Jr.Div.), First Class, Ajmer City (East), Ajmer, allowed the application filed by the respondent -plaintiff under Order 6 Rule 17 of CPC, so as to the cost of Rs. 500/ -. Background facts of the case, in nutshell, are that the respondent -plaintiff filed a civil suit for possession of property in question against the petitioner -defendant in the court of Civil Judge (East), Ajmer. During the pendency of the suit, when the case was listed for recording the statements of defendant -petitioner, the respondent -plaintiff filed an application under Order 6 Rule 17 of CPC seeking

(2.) LEARNED counsel for the petitioner canvassed that the proviso to Rule 17 of Order 6 of CPC does not permit an amendment to be made in the pleadings after commencement of trial of the suit. In the instant case, the case was listed for recording the statements of petitioner -defendant and respondent -plaintiff was motivated to seek an amendment in the plaint after the cross -examination of the plaintiff. Since, during the cross examination of the plaintiff, certain facts emerged, which were contradictory to the pleadings, hence, with a view to rectify those defects, he sought amendment at a belated stage, which was not permissible under the law, hence, the impugned order needs to be set aside.

(3.) E converso, the learned counsel for the respondent -plaintiff contended that the boundaries exhibited in Para 1 of the plaint are with regard to the entire property relating to Khasra No. 3787 to 3801, whereas, the amendment sought in the Para 3 of the plaint is with regard property in question. Learned counsel further contended that the elaboration of the property in question is permissible under Order 6 Rule 17 of CPC and the amendment sought for by the plaintiff -respondent has not altered the nature of the suit nor any additional or extra relief has been prayed by him. The amendment allowed by the learned trial court does not cause any prejudice to the petitioner -defendant nor is it contrary to details of the property, which have been exhibited in Para 1 of the plaint. The amendment sought for in both the paras No. 3 (a), 4(a) and 4(b) are related specifically to the property, whereupon the encroachment is found to have been made by the defendants. It is simply an elaboration and unfolding of the facts, which could not be narrated earlier while filing the plaint. Learned counsel has defended the impugned order and stated the same to be just and proper, which did not justify any interference.