CHANDRA PRAKASH AGARWAL Vs. RIDHKARAN PARASRAMPURIA

JUDGEMENT

(1.) Plaintiff/Petitioner filed this petition to quash and set aside the order dated 11.03.2016 passed by Additional District Judge No. 2, Jaipur Metropolitan, Jaipur whereby the application filed by the petitioner u/O 6 Rule 17 CPC in Civil Suit No. 22/2013 titled Chandra Prakash Agarwal Vs. Ridhkaran Parasrampuria & Ors. was dismissed.

(2.) Learned counsel for the Petitioner submitted that learned trial Court has wrongly observed that the plaintiff -petitioner cannot file an application u/O 6 Rule 17 CPC after commencement of trial. In fact the petitioner has got no knowledge regarding the acquisition, which reveals from the agreement, reply to the notice, written statement and affidavit of DW -1 Bhagwati Prasad. Learned Counsel also submitted that the amendment application can be filed even after framing of issues, if the amendment which has been sought could not be raised before the commencement of the trial. The present case falls under the proviso of Order 6 Rule 17 CPC thus, observation of learned trial Court is not only illegal but against the provisions of law. Learned Counsel further submitted that the defendants did not disclose the fact of acquisition of part of land in question even at the time of execution of the agreement or sending the reply to the notice or filing the written statement or filing of the affidavit of DW -1, therefore, there was no occasion for the writ petitioner that he got knowledge regarding the acquisition thus, the observation of learned trial Court in this regard is on the basis of assumption and presumptions. Learned Counsel also submitted that the proposed amendment came in the knowledge of the petitioner after obtaining the documents from the competent authority regarding acquisition and he immediately filed amendment application u/O 6 Rule 17 CPC. As such the present case is of subsequent event. Learned Counsel further submitted that the learned trial Court failed to consider the material on record which clearly mentions that the defendant -respondents have concealed the aforesaid facts. In spite of this, the learned trial Court dismissed the application of petitioner filed u/O 6 Rule 17 CPC, whereas the adverse inference has to be drawn against respondents thus, the impugned order deserves to be quashed and set aside. He further submitted that the amendment sought by the petitioner is not only essential but it is required for just decision of the case. If the proposed amendment is allowed then no prejudice will cause to the respondents. He also submitted that the proposed amendment would not alter the cause of action or nature of the suit, rather it will minimise the litigation. Learned Counsel for the plaintiff -petitioner placed reliance on :

(3.) Learned counsel for the defendant -respondents supported the impugned order and submitted that before the execution of the agreement for sale of disputed land, the respondents disclosed all the material facts regarding the land in dispute to the plaintiff -petitioner including the fact of acquisition of part of land. The plaintiff -petitioner also inspected the land before the execution of agreement. He also submitted that the notice of acquisition was published in newspapers also. This is not the case of plaintiff -petitioner that in spite of due diligence, he could not have raised the matter before the commencement of trial, thus, the learned trial Court did not commit any illegality or wrong in dismissing the application for amendment sought by the plaintiff -petitioner. Learned Counsel further submitted that the scope of article 227 of the Constitution is very limited, the present case is not a fit case to exercise the jurisdiction under Article 227 of the Constitution and prayed to dismiss the petition being devoid of merit.