DINESH KUMAR AGRAWAL Vs. SHYAM SINGH SHEKHAWAT

JUDGEMENT

(1.) After the judgment having been pronounced by this Court on 05.01.2018 in the case of Prakash Vs. Murti Mandir Shri Laxminarain Ji Maharaj (S.B.Civil Writ Petition No.2540/2017) wherein this Court has taken a view that an application under Order 6 Rule 17 CPC would be disallowed if the same is seeking to make an amendment which is effected by the provisions of the Limitation Act, this Court was informed to the judgment passed by the Apex Court in the case of Mohindra Kumar Mehra Vs. Rooprani Mehra, (2017) 14 Scale 223 wherein considering the provisions of Order 6 Rule 17 CPC in the light of the law laid down by the Apex Court in Salem Advocate Bar Association, T. N. v. Union of India, (2005) 6 SCC 344 and Rajesh Kumar Aggarwal & Ors. Vs. K.K.Modi & Ors., (2006) 4 SCC 385 and Chander Kanta Bansal V. Rajinder Singh Anand, (2008) 5 SCC 117, the Apex Court allowed the application under Order 6 Rule 17 holding that the issue relating to the question of amendment being barred by limitation is an issue for which evidence needs to be recorded and finding is required to be given and whether the said suit is barred by limitation or not would be decided on the basis of the nature of evidence which shall come on record only after the amendment is allowed. The Apex Court has also relied on law laid down in - Jai Jai Ram Manohar Lal Vs. National Building Material Supply, 2015 13 SCC 132 and observations made therein have allowed the application under Order 6 Rule 17 CPC. In another case - Rajkumar Bhatiya Vs. Subhash Chander Bhatia, (2017) 14 Scale 355 the Apex Court has observed that while deciding application under Order 6 Rule 17 CPC the merits of the amendment sought cannot be gone into and in the said case where the High Court had intervened of the order of allowing application under Order 6 Rule 17 by the trial Court, the appellate Court held such intervention to be unjustified.

(2.) In lieu of law laid down by the Apex Court in the case of Mohindra Kumar Mehra , the view taken by this Court in Prakash has been distinguished.

(3.) Keeping in view above position of law, a look at the present order passed by the Additional District & Sessions Judge, No.13, Jaipur Metropolitan (hereinafter to be referred as 'learned trial Court') goes to show that while taking note of the provisions as noted above, the learned trial Court has proceeded to deal with the merits of the amendment sought to be made by the petitioner at the stage of deciding application under Order 6 Rule 17 CPC which could not have been done.