x x MK HIGH COURT OF CHHKI‘TISGARH BILASPUR Writ Petition C No.113 2008 Prashant Dave, aged about 4O years, S/o Late Durgashankar Dave, R/o Behind Pandn' Post Oiiice, Pandn', Raipur, Shop Sharda I Chowk, Opposite Police Chowki, M.G. Road, (Chhattisgarh) Raipur, Tehsil 65 District Raipur Versus Smt. Shakuntala Devi, aged about 53 years, R/ 0 Panchsheel Wd/o Late Nagar, Rawaldae Raipur, Nagram, Tehsil and Dishict Raipur, Present address : C/o Om Krishna Juice Comer) Sharda Chowk, Raipur (Chattisgarh) PETITIONER WRIT PETITION UNDER ARTICLE 227 OF THE GONSTITUTION‘ OF INDIA A earance : Shri Sanjay S. Agrawal, Counsel for the petitioner. Shn’ Kshitij Shanna, RESPONDENT Counsel for the respondent. om ORDER 121.02.2008) M $UNIL KUMAR SINHA J. 1. Heard. 2. Article 227 of Constitution of India, challenging the validity of the order dated 24/9/2007 (Annexure P/5) passed by the 4th Civil Judge, Class-II, Raipur, in Civil Suit No.123 said Court has dismissed his application filed under Order 6 Rule 17 read with Section 151 ofthe Code ‘of Civil Procedure, 1908. -A/ 2006, whereby, the W.P.(C) No.113/2008 é, I praying that the defendant/respondent be restrained from interfenhg with his posssssion over the suit shop amd she may also be restrajnsd fmm illegally 6victing him from the said shop. Earlier, the petitioner has also claimed for temporaly injunction, but his claim for temporary injunction was dismissed by the trial Court. Thereafter, the Miscellaneous Appeal was dismissed by the Appellate Court and ultimately, the writ petition hled under Article 227 of Constitution of India was also dismissed by this Court. It is after such dismissals, the said application for amendment of the plaint was filed, in which, the plaintih‘ sought for incorporating the plea regarding dispossession as also claiming relief of possession against the defendant. The said application was contested by the defendant on the ground that the relief sought for by way of amendment was barred by time and since a contradictory plea was being taken by the plain‘h‘E, it should not be allowed. 4. The trial Court by the impugned order dismissed the application mainly on the ground that the relief claimed by the plaintiE was barred by limitation and for coming to that conclusion, it has entered into the controversy raised by the paru'es regarding the date of dispossession of the plaintin‘ as also regarding the applicability of provisions of Article 64 of the Indian Limitation Act and it also referred to the provisions of Section 6 of the Specific Relief Act and concluded that in fact, the reliefclaimed was barred under Section 6 of the Specific Relief Act 5. Learned counsel for the petitioner submits that the trial Court erred in law by entering into the controversy regarding I i . 3 W.P.§C) No.113/20Q§ merits of the amendment sought for on the ground of its maintainability on account of limitation. He submits that it was not the proper stage for the trial Court to enter into a mixed question of fact and law and the tn'al Court ought to have allowad the amendment application and thereafter, if the grounds are taken in the written statement, then, it would have decided the question of limitation by framing issues and calling upon the parties to lead their evidence and argue on the point. 6. On the other hand, learned counsel for the respondent supports the order passed by the trial Court. 7. I have heard learned counsel for the parties at length and have also perused the records of the writ petition. 8. The Apex Court referring to the judgments rendered in the matters of Charan Das v. Amir Khan Am 1921 PC 50, L.J. Leach & Co. Ltd. V. Jardine Skinner 6a Co. Am 1957 SC 357: Ga_nga Bai v. Viigu Kumar (197412 SCC 393 and Ganesh Trading Co. I). Moii Ram {1978i 2 SCC 91, held in the matter of B.K. Narayana Pillai v. Pmwnéswaran Pillai (2000) 1 SCC‘ 712 that the purpose and object of Order 6 Rule 17 CPC is to allow either party to alter'or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. it is true that the am endment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding 4 W.P.(C) No. 1 13/2008 such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled—for multiplicity of litigation. 9. Further in the matter of Raqhu Thilak D. John vs. S. Rayappan and others, (2001) 2 S.C.C. 472, where the amendment sought was claimed t0 be barred by limitation, the Apex Court held that the dominant purpose of allowing the amendment is to minimize the litigation and when the plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case and the plea of limitation being disputed, it could be made a subject matter of the issue after allowing the amendment prayed for, and on this ground, it directed that the amendment be allowed and the disputed matter should be made the subject matter of an issue. 10. If we apply the above principles in the facts and circumstances of this case, it wotdd appear that previously the plaintiif had filed a suit for permanent injunction and when he lost in the matter of temporary injunction even in the High Court, he filed an application for amendment of the plaint under Order 6 Rule 17 of the Code of Civil Procedure mainly for incorporation of the relief of possession. The pleadings raised by the plaintiff for amendment and the resistance made by the defendant in this K 5 w.P.(C) No. 1 13/2008 regard make it clear that the point to be decided with reference to them was a mixed question of fact and law and the trial Court apparently erred in law While entering into decide that point at the stage of deciding the amendment application, Whereas, in all proprietaiy, the point raised should have been allowed to be incorporated in the plaint and then, a finding would have been recorded after framing an issue on the point. 11. In the above facts and circumstances of This case, in the opinion of this Court, on the said grounds, the petition tiled by the petitioner/ plaintiif deserves to be allowed and the impugned order passed by the trial Court deserves to be set aside. 12. Accordingly, the impugned order dated 24/9/2007 passed ' by the trial Court is set aside. The amendment application filed by the plaintin' stands allowed. 13. Needless to say that the defendant shall be at liberty to file written statement in relation to the pleas raised by the plaintiff including the plea of limitation and the question of limitation shall be open for decision by the trial Court during the course of trial in accordance with law. 14. No order as to Costs. Sunil Kumar Sinha? _ Judge SdF Shyna