BEFORE HON’BLE HIGH COURT-0F CHHATTISGARH AT BILASPUR WRIT PETITION (MNo; 26 5 /2010 ‘ 1; ‘ 1. arr JS Sing, /o rdar rjet , t 6 ear net /o t ripa! ingh, aed ou 6 years, rvnd ih, S/ L rip- S, ged out year arb gh, S/o Late ria Sjeet Sin Kpl Sing, agedaou 32 years, mt. Paraet Kaur, /o aabjeet igh, aged bou 3 ars, t. iranjeet Sih, W rd Majit Singh ae u ear Ha're h S ardar Jasr- ng, aged aut 24 years All r nt Guru Nak ar libdh, Rai .G.) Alt represd thug owe f torey holder Sarar Jar Si, S/o ard 'ret Sin, age abou 6 yrs, u a agar, Teliand, Rai (C-) SENGIE 3EEI§§2H PETITIONERS Plaintiffs VERSUS ESPONDENT Defendants Ramdas Ag’rawaL S/o Seshramg aged about 62 years, Smt. Draupadi Devi, W/o Ramdas ' Agrawal, aged about not knownu‘ Sunil Kumar Agrawal, S/o Ramdas Agrawal, aged about not known, E W} Sda ab'r h S Sa Sue Singh aged abou O ys, Maje §ingh, S Lae K S g Iabt 4 Haier $ng o ate Kal ingh a Iab 54 s, h jbt S mje W Sr Sn at 8 ye Sm K ng /o Saar n , gd abot 36 ys, pret Sing, /o S bi Sih bo ae reside of na nga, Teana pur (C ente roh Pr o atn d sbi ngh Sar Suje gh d t 0 ea R/o Gur Nnak n bha pur -G R ‘Manish Kumar AgrawaL S/o Ramdas AgrawaL aged about not known, Sushll Kumar Agrawal S/o Ramdas Agrawal aged about not kwnon ‘ Neelam, D/G Ramdas Agrawal, aged about not known,_ t r Sajan Kumafr, S/o Ramdas Agrawal, aged about not known, V Vimal Kumar, S/o Ramdas Agrawal, aged about 'not known, All are resident of Tota Brand Gudakhu, Gass memorial K.K. Road, Modahapara, Raipur (C_.G.) Bajranglal Nagar, S/o rGovindlal nagar, aged about‘82 years, R/o Telibandha, G‘urunanak Nagar, Raipur (C.G.) State of Chhattisgarh, Through: District Collector, Raipur (C-G.) ~_,Awatar Singh, S/o Late Kripal Singh, ' agedabout33 years, of Guru Nanak nag‘ar, Telibandh'a, Raipur (C.G.)-— Plaintiff ,}L7—‘ WRIT PETITION UNDER ARTICLE m6 OF THE CONSTITUTION OF INDIA The‘above named Petitioner respectfully submits as under:- l I 1.“. PARTICULARSOF PETITIONE'R ‘. A moed in the Cause title. W , ‘ s entin @. ‘ wGH‘ COURT OF CHHATTISG‘AEH AT BILA§PQR Smqle Bench Hon'bh Shn Justlcg Prashant Kymar Mushra Wrlt Pehtlon {227) No 2 912010 Petitioners _ Sardar asblrSmgh'and others. Versus ‘ i Res‘p‘bndenh ' Ramda ’ Agrawal and others. ‘ r Shn Anup Majumdar counsel for the petmoners Ms Sangeeta Mishra Pane} Lawyer farthe State ~ ’ Writ Petition under Articie 227 oftheéConstitution of india 0 R A L O R B E R (20.01.2010) i Heard on admission. (2) The Chaiienge in this Wiit petition tiled under Articie 227 of the ,I Constitution of india is to the order passed by the trial Court on ., 1 122009 reiecting the piaintiffs appilcation for amendment in the i ‘ iaint As stated by the oounsei the tnai in the Court below has atready commenced and the piaintiffs have oiosed the evrdence and 1 the matter is now‘tixed for recording of evidence of the defendants. : From the copy of the ptaint fried atong with the writ petition, it appears ‘ that the piaintiffs have earlier moved an application for amendment whioh‘was allowed in the month of May, 2006 and thereafter, another amendment of the plaint was granted to the plaintiffs in the month of May, 2008. The present application for amendment was tiled in Joly, (3} The leamed triai ' Court has observed that the proposed amendment wrll change the nature of the suit in as such that earlier suit ’ l to was for declaration of the suit and the present amendment is for seeking possession it has also been observed that the application is belated {4t ln the opinion of this Court in View of the proViSion contained in a the proViso to order 6 Rule 17 of CPC the application for amendment 0 p w ¥ l moved after the commencement of the ma! can only be anoWed ii the party moving the amendment satiety the Court that he could not move the amendment tn spite of due dtttgence On perusal of the amendment apphoahon tt appears that the plarnhffs have not exptarned as to how they were prevented to move this amendment apphcatron or to ratse the pteadmge before the comme cement of the that The Hon’bte Supreme Court m the case of Vtdyabat & others. Vs. Premtatha & Another reported 1n 12009) 2 $Cc 409 has hetd thus tn para 15 8: 19 rs reproduced hereunder “15 We may notrce that rn Ajemdraprasadjr N Pandey v Smmr Keshavprakeehdasjr N‘ thrs Court noticed the decrsron of thrs Court m Kariash3 to hotd (Alendrapramr case SOC p 13 paras 35-36) “35 By Act 46 of 1999 there was a sweeping amendment by which Rutes 17 and 18 were whotty omitted so that an amendment ”Itself was not perrhisstbte, atthough sometimesenort was made to rety on Section 148 for extension of time for anyipurpose. ‘36‘ Utttmatety, to strike a balance the tegistature applied its mind and reintroduced Rule 17 by Act 22 of 200i wet. 1-7—2002. ‘lt had a provision pennitttng amendment in the frrst part whiohsaid that the court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any apptication for amendment to be allowed atter the trial had commenced untess the court came to the conclusion that tn spite of due dttigence the party could not have raised the matter. before the commencement of the trial. lt is this proviso which tails for consideration." ‘ This Court also noticed Salem Advocate Bar Assn V Union or mdi to hotd (Areadraprasawi case SCC pp 14 15 paras 41 -43) “4t We have caretuliy consrdered the submissions made by the respective Senior Counset appearing for the respective parties. We have atso carefutty perused the pieadings, annexures, various ' orders passed by the courts below, the High Court and of this Court. ln the counter-affidavit filed by Respondent 1) various dates of hearing with reference to the proceedings taken before the Court , has been etaborately spelt out which in our opinion, would show ‘ that the appeliant is prectuded by the proviso to ruie in question ‘ from seeking relief by asking for amendment of his pteadings. V42. it is to be noted that’the provisions of Order 6 Ruie 17 CFC have been substanttaily amended by the CPC (Amendment) Act 2002 ,.§- / ‘43. nder te proviso no application for amendment shail _ be aucwed after the trial has omnmemed, un‘ess in spite of due, " : diligenoe, the matter ‘ could not be raised before the commencement of triai. it is submitted, that after the triat of‘the case has commenced, no application of pleading shaii be allowed . umess the above requirement is satismd. We amended Order 6 Rule 17 was due to the recommendation of the Law Commission ‘ ' since Order (sic Rule) 17, as it existed pigior to the amendment, was invoked by parties interested in delaying the trial That to . L i shorten the lmgatron and epeed up drsposat! of suits amendment V was made by the amendmg Act 1999 deietlng Rule 17 from the : Code. Thrs evoked much centroversylhesrtahon an over the 3 country and atso leadtng tn boycott of courts and therefore by the - l CMtProcedure Code (Amendment) Act 2002 provrsrun has been » restored by recogmzrng the power of the court to grant amendment however wrth certarn trmrtatron whrch ts oontarned m ' the new provrso added to the rule The detarts turmshed betow wm g go to show as to how the facts of the present case show that the « matters which are sought to be raised by way of amendment by the ; appettants were we“ within their knowledge on their court case i and manrfests the abeenoe of due drtrgence on the part of the r The ratio rn Karfash3 was rerterated stating that the trial rs deemed to commence when the issues are settted and case rs set down for reoordrng of evrdence 19. it is the prirnai duty of the Court to decrde as to whether such an amendment rs necessary to decide the real dispute between the padres. Only rf suoh a condrtron rs fulfrlled, the amendment rs to be atlowedi However, proviso appended to the Order 5 Rule 17 of the Code restricts the power of the court. lt puts an embargo on exercise oft its jurisdiction The court‘s jurisdiction, in a case of this nature is limited Thus uniess the jurisdictional fact as envisaged therein is found to be exretihg the court wrll have no iunsdictron at all to allow the amendment of the plarnt “ (5) ln View of the law lard by Hon’bie Supreme Court this Court does not find any error of iunedrctron committed by the trial Court In rejecting the application warranting interference under Article 227 of he Constitution of indie r (6) The petition tiled under Article 227 of the Constitution of lndra fails and dismissed at the admission stage itself , , l _ 'sh appeiiants disentitling them to reiie ” d/I- PrashantK mar ra, i Judge \ . ,g/w w \ t U h