SBCWP NO.7037/2006 – KASHI RAM . V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 1/6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.7037/2006 Kashi Ram Versus Additional Dist. Judge and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr. S.L.Jain, for the petitioners Mr.R.K.Singhal, for the respondents. DATE OF JUDGMENT : 15th September, 2009. JUDGMENT 1. This writ petition has been filed by the defendant being aggrieved by the order dtd.24.1.2006 whereby the application under Order 6 Rule 17 C.P.C. filed by the plaintiff in the present suit for specific performance was allowed by the learned trial Court. 2. Mr. S.L. Jain, learned counsel appearing for the petitioner – defendant Kashi Ram submits that the said amendment application filed belatedly at the stage when the plaintiff's evidence was nearing completion could not have been allowed by the learned trial Court to incorporate the relief in the form of clause (b) of the relief, whereby the relief to the extent purported sale-deed to be executed in favour of SBCWP NO.7037/2006 – KASHI RAM . V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 2/6 the plaintiff or any other person named by him was sought to be incorporated by said amendment application under Order 6 Rule 17 C.P.C. Mr. Jain further submits that in the present suit, specific performance of the agreement for sale of land measuring 49.10 bighas was sought, whereas in the cross-examination of the plaintiff, it came before the Court that he was already holding land of about 25 bighas and therefore, if the sale-deed in question under decree of the Court was to be executed in his favour, his holding would exceed the limit prescribed under the Ceiling law. He submits that liberty to cross- examine the plaintiff on this aspect of the matter was granted by this Court by allowing the writ petition No.4244/2004 filed by the present defendant - petitioner in this Court on 11.5.2006 and thereafter as soon as said cross-examination took place, to find the way out of this, the plaintiff filed the present amendment application to mould the relief by incorporating clause (b) in the relief clause so as to seek execution of the sale-deed in favour of the plaintiff himself or in favour of the party named by the plaintiff to avoid ceiling on land holding under the relevant law. Mr. Jain, therefore, submits that this amendment sought in relief clause of the suit was malafide and not only was sought at belated stage, but could not be granted by the learned trial Court. He referred to the amended provisions of Order 6 Rule 17 C.P.C. which stand in the statute book w.e.f.1.7.2002. SBCWP NO.7037/2006 – KASHI RAM . V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 3/6 3. On the side opposite, Mr. R.K. Singhal, learned counsel appearing for the plaintiff – respondent urged that the said amendment has been rightly allowed by the learned trial Court because not only the agreement in question dtd.13.1.1984 on the basis of which the said suit for specific performance was filed incorporated this stipulation that vendor – present defendant would execute the sale-deed in favour of the plaintiff or the person named by him, but para 6 of the plaint also specifically stated this fact and therefore, the amendment in relief clause sought was in consonance with the pleadings and the document already taken on record and therefore, no valid exception can be taken to such amendment being allowed by the learned trial Court. He further urged that the delay in filing the amendment application arose because in earlier writ petition, this Court directed only on 11.5.2006 cross-examination of the plaintiff on the aspect of his holding within the limits of Land Ceiling law and therefore, when the amendment of the defendant could be allowed, the amendment sought by the plaintiff which has been allowed by the impugned order, could not be said to be invalid or belated and therefore, has been rightly allowed by the learned trial Court. 4. Having heard the learned counsels and upon perusal of the impugned order and the sequence of the facts narrated above, this Court is of the view that the amendment allowed by the learned trial SBCWP NO.7037/2006 – KASHI RAM . V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 4/6 Court in favour of the plaintiff by allowing his application under Order 6 Rule 17 C.P.C. was not justified. Said amendment has not only made at belated stage contrary to proviso inserted in Order 6 Rule 17 C.P.C. w.e.f. 1.7.2002, which prohibits amendment after trial has commenced unless cogent reasons therefor are recorded by the learned trial Court, but in the present case, such amendment in relief clause also appears to have been made in view of development taking place in the present case with the allowing of the writ petition filed by the defendant, namely, writ petition No.4244/2004. By allowing this amendment and allowing clause (b) to be added in the relief clause, a way out for land holding not to go beyond the Ceiling law may be found by the plaintiff in the present case. It is worth noting that when the defendant raised this objection and came up before this Court and succeeded in cross-examining the plaintiff on this aspect of the matter, the plaintiff became aware of his constraints and limitations and tried to seek a way out by seeking present amendment in the relief clause, which came to be allowed by the learned trial Court. By this relief, if granted by the Court, the sale may have to be effected in favour of a third party, who even does not have a privity of contract in the said agreement dtd.13.1.1984 at all. This cannot be permissible in law. SBCWP NO.7037/2006 – KASHI RAM . V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 5/6 5. It is true that the amendment allowed by the learned trial Court is based on the stipulation in the agreement as well as in para 6 of the plaint as pointed out earlier, but reason for which the learned trial Court has allowed this belated amendment in the pleadings, namely in relief clause also does not appear to be justified to this Court. Amendment in the pleadings cannot be allowed jus for askance, more so, contrary to the spirit of proviso to Order 6 Rule 17 C.P.C., the purpose of which is obviously to disallow endless amendments in the pleadings so that trial can be expedited. In view of what has been stated above,the amendment sought by the plaintiff at the belated stage of the plaintiff's evidence nearing completion cannot be held to be justified. Consequently the learned trial Court is held to have allowed such application of plaintiff under Order 6 Rule 17 C.P.C. wrongly and said part of the order cannot be sustained. The writ petition to this extent of the defendant deserves to be allowed and is hereby allowed. 5. Another application of the plaintiff which came to be allowed by the learned trial Court by same order was the application of the plaintiff under Order 8 Rule 9 C.P.C. allowing his rejoinder to be taken on record. The said rejoinder filed subsequent to the amended written statement filed by the defendant – petitioner in pursuance of judgment of this Court dtd.11.5.2006 was taken on record. If amended written statement of the defendant was taken on record SBCWP NO.7037/2006 – KASHI RAM . V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 6/6 pursuant to the said decision of this Court, it was only natural and in the interest of justice to allow the rejoinder of the plaintiff also to be taken on record under Order 8 Rule 9 C.P.C. Therefore, to the extent, challenge to this part of the order must fail and therefore, to this extent, the writ petition of the defendant deserves to be dismissed and is hereby dismissed. 6. Consequently this writ petition is partly allowed as indicated above. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.12 Ss/-