RAMCHIJ VISHWAKARMA Vs. GAYAN PRAKASH BUDHIA

JUDGEMENT

(1.) The petitioner, who is the plaintiff in Title Suit No. 135 of 1999, is aggrieved of order dated 21.01.2017 passed in Misc. Case No. 09 of 2015 by which his application for amendment in the plaint of Title Suit No. 135 of 1999 and the judgment and decree in the said suit has been dismissed.

(2.) Title Suit No. 135 of 1999 was instituted by the plaintiff for a decree for specific performance of the contract in respect of 7 decimals of land out of R.S. Plot No. 1450 covered under Khata No. 85 situated at village-Missirgonda, P.S. Bariatu, District-Ranchi. The description of the suit land has been given under the schedule appended to the plaint. The suit was decreed vide judgment dated 31.08.2012 and the plaintiff levied Execution Case No. 14 of 2012 for execution of the judgment and decree in Title Suit No. 135 of 1999. In the pending execution case, the petitioner filed an application for amendment, however, simultaneously he has also filed a similar application in the Court which has decreed Title Suit No. 135 of 1999. This application has been registered as Misc. Case No. 09 of 2015. In his application dated 02.03.2015, the petitioner has averred as under :

(3.) Order VI Rule 17 CPC, which permits amendment in the pleadings at any stage of the proceedings is founded on the principles of equity, justice and good conscience, provides that the court may permit either party to amend his pleadings at any stage of the proceedings, however, Rule 17 CPC itself puts a limitation on powers of the court to permit amendment in the pleadings. It provides that if amendment in the pleadings is necessary for the purpose of determining the real question in controversy between the parties, all amendments in the pleadings can be permitted on such terms as the court may deem just and proper. After Order VI Rule 17 CPC was amended by the Code of Civil Procedure Amendment Act, 2002 and a proviso was inserted therein, further limitation has been put on powers of the court to permit amendment in the pleadings. It provides that no application for amendment shall be allowed after the trial has commenced and by now it is well-settled that proviso to Order VI Rule 17 CPC is mandatory. In "Salem Advocate Bar Association, T. N. Vs. Union of India reported in, 2005 6 SCC 344", scope of proviso to Order VI Rule 17 CPC has been discussed by the Supreme Court in the following words :