«w /6a IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (227) NO.&??..OF 2011 SWELL: BENCH Par Tikampar‘a, Dham’rari, Tahsil and DisTricT Dham’rari‘ \\ (C.G.). f 2/ The Tahsildar, DhamTari, Tahsil COUNSTITUTION OF INDIA . The peTH-ioner above-named mos‘r respec’rfully submh‘s as under: — \ I / PETITIONER Ramkumar, aged 42 years, son of la‘re (Plain‘riff) Mamdin Chakr‘adhar‘i, R/o. Khapar'i Talab Par' Tikampar‘a, Dham’rari, Tahsii and Dis’rricf Dham’rari (C.G.). h VERSUS / RESPONDENTS 1. Naresh Dhcbi s‘on of laTe Garib (Defendants) Lal Dhobi, R/o. Khapar‘i Talab 9 e r? 9 QfQ’ Office, Dhammri, DisTr‘icf i“ Dham‘rar'i (C.G.), ‘9 / 3. STaIe of Chha’r’risgarh, Through: The CoHecTor, DhamTari, CollecTor Officer, DhamTari (C.G.), (“a”) Q 4. Vimla Bcu' widow of iaTe u” W . ‘- Romrekha Kahar, R/o. Khapari ‘\V,x, Taiob Par Tikarapara, DhamTori, Tahsii and DisTricT Dhomfari (C.G.). WRIT PETITION UNDER ARTICLE 227 OF THE HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (227) No. 680 0f2011 WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA (SB: Hon'ble Mr. N.K. Agarwa], J.) Present : Shri KS Patel, Advocate for the petitioner. , ORAL ORDER (Passed on 04.02.201 1) The instant petition is directed against the order dated 18.01201 1, passed hy the Cit/i1 Judge Class II, Dhamtari, in Civil Suit N0. 21— A/09, whereby the petitioner’s applicatien for amendment filed under Order 6 Ruie 17 of CPC has been dismissed. The plaintiff instituted a suit seeking relief of declaration and possession over the suit property. In para 6 ofthe plaint, it has been categorically pleaded that defendant No. 4 entered into a compromise on 29.11.2008 and according to said compromise the defendant No. 4 relinquished her right over the land (1 1 .6 X 14.3= 163.87 Sq.f.) and has admitted plaintifs ownership and possession over the above land. The declaration was sought based-on adverse possession over the suit land which is marked as A,B,C & D in the plaint map. After commencement of trial, without showing any PETITIONER i Ramkumar Plaintiff VERSUS RESPONDENTS i Naresh Dhobi & others Defendants In view of proviso to Order 6 Rule 17 the court’s jurisdiction to allow such application is taken away after commencement of trial W ‘ 1 2005 (13) soc 89 amendment application the court should not take into consideration the merits of the matter and the court below after entering into the merits of the matter, dismissed the amendment application which is illegal and deserves to be set aside. Reliance has heen placed upon the judgment of Supreme Court in case of Sajjan Kumar v, Ram Kishan‘. I have heard the counsel appearing for the petitioner and perused the order impugned. Before considering the rival submissions made by the counsel for the petitioner, it would be appropriate to advert to the proviso to Order 6 Rule 17 ofCPC. Order 6 Rule 17 of CPC reads as under : “Order 6 Rule 17 Amendment of pleadings—The of the proceedings allow either Court may at any stage amend his pleadings in such manner and. party o alter or amend be just, and all such amendments on such terms as may just, be necessary for the purpose of shall he made as may in controversy between the determining the real question parties. Provided that no application for amendment shall the trial has commenced, unless the: be allowed aner the that in spite of due Court conies to the conclusion could not have raised the matter diligence, the party of trial.” a before the commencement Dz?) 3 unless the court comes to the conclusion that despite of due diligence the party could not have raised the matter before the commencement of trial, and as in this matter the said amendment was proposed alter the commencement of trial before the Civil Judge without showing such cause, and therefore, the court below has rightly rej ected his application for amendment. The Supreme Court in case of Vicb/abai and others v. Padmalatha and anotherz: has observed in para 19 as under : “19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed, However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on eXercise of its jurisdiction. The Court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction to all to allow the amendment ofthe plaint.” The aforesaid proposition of law is binding on this court. By applying the aforesaid proposition of law to the facts of the present case, it is clear that the plaintids/respondents have not assigned any reason whatsoever why they could not have raised the matter before the commencement of trial ?. The facts, which the petitioners were wanted to add, were well within their knowledge since inception. 2 2009 (2) soc 409 Sahu In View of above, in the considercd opinion of this court, the trial court has not committed any illegality or irregulality in disallowing the above amendment application warranting interference of this court under Article 227 ofthe Constitution of India. 10. It is well settled principle of law that this Couzt, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, should refrain itself from interfering with the order passed by the Court below, except in such cases where perversity, illegality, irregularity or jurisdictional error is writ large ion the face of the record, whichis not in the present case. ll. The petition has no merit and the same is accordingly dismissed in limine. Sd/— N.K. Agrawal Judge