NAINA KALA SHARMA Vs. DEEPAK KUMAR RAI

JUDGEMENT

(1.) Heard Learned Counsel for the parties.

(2.) Learned Counsel for the Petitioners submits that he is aggrieved by the impugned Order in Title Suit No.03 of 2019 in the Court of the Learned Civil Judge, West District at Gyalshing, dated 23.02.2021, on grounds that the Learned Trial Court rejected his petition filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'CPC'). The attention of this Court was drawn to the application filed before the Learned Trial Court and it was submitted that the Petitioner No.1 is the divorced wife of the Respondent therefore she has the right to stay in the property she is occupying presently, as envisaged by Section 19 of the Protection of Women from Domestic Violence Act, 2005 (for short 'D.V. Act'). That, this was the only amendment that he sought to insert in the Written Statement which was inadvertently omitted. That, the Learned Trial Court vide the impugned Order however observed that the Learned District Judge in Title Suit No.43 of 2013 (Mrs. Naina Kala Sharma and Others v. Deepak Kumar Rai) held that the Defendants cannot be regarded as having any right, title and interest over the Suit property and thereby rejected the application. Relying on the decision of the Hon'ble Supreme Court in Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi (2017) 14 SCC 373, it was contended that the Petitioners have the right to insert this averment as provided by Section 26 of the D.V. Act. Hence, the Learned Trial Court be directed to allow the amendment.

(3.) Per contra, Learned Senior Counsel for the Respondent submits that in the first instance, the petition under Order VI Rule 17 read with Section 151 of the CPC filed by the Petitioners does not even mention the proposed amendment and is therefore vague. That, when the amendment is vague, it ought not to be allowed as held in Gurdial Singh and Others v. Raj Kumar Aneja and Others (2000) 2 SCC 445. Reliance was also placed on the decision of the Hon'ble Punjab and Haryana High Court in Raghbinder Singh v. Darshan Singh 1999 SCC OnLine P&H 1223. That, Section 26 of the D.V. Act provides for reliefs only when a case under the D.V. Act is pending before the Learned Magisterial Court and no relief accrues to the Petitioners in the instant Suit pending before the Court of the Learned Civil Judge. Hence, the petition be rejected as the observations of the Learned Trial Court require no interference.