-S 1^c!te F^f-^^fffi IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (0 No. ^.37 of2008 s^l- PETITIONER Vinod Kumar Agrawal S/o PLAINTIFF <-" Chhaganlalji Agrawal, Aged ^ about 45 years, R/o ^•"""^M^ ' Ramsagarpara, Raipur, ,.....- Tahsil 85 District - Raipur ^^.A--""__ «-> '^^" Versus RESPONDENT DEFENDANT Sonkar, S/o Khelan Sonkar, R/o Ramkund, at present R/o Behind Radhakrishna Mandir, Samta Colony, Raipur, Tahsil & District - Raipur (C.G.) WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA yiGH_COURT OF_CHHATTiSGARH AT BIIASPUR Slnale Berscfi: Hon'ble Shrl Jvstice Prashant KumaiMjstira Wrlt (2271 of2008. Versys Chancirika Sonkar PostfortO-02-2010. Sd/- prashant Kumar Mishra Judge v^- !(<:.- COURT OF CHHATTISGARH AT BJLASPyR Slnale Bench: Hon'ble Shri Justice Prashant MlsSira Wrlt 0271 Pstltioner Respondent Versus Kumar Agrawal Chandr'ta. Sonkar Shri Goutam Bhaduri, for the petitioner. Shri B.P. Sharma, counsel forthe respondent. Writ Petitloii UEider Artlcle 227 of the ORDER --. - (Detlvered ors J^ February, In this writ ynder. Arttole 227 of the Constltution of the has called In questlon the legatfty, valldity and of the Order 21.11.2008 (Annexure-P/1) by the trial Court rejecting Order 6 RuSe 7 of the Cocie of Civll Procedure. (2) The petttioner/plaintiff has the • sult for of the of executed the on 28.08.2003 (Annexure-P/2). TNs sult was fited on 23.08.2006, The respondenVdefendant hls Annexure«P/4on 17.11.2006 and thereafter were framed by the trial Court on 17.08.2007. (3) The for amendment of the Order 6 17 of the Code of Clvll Procedure (Annexure-P/5) on 21.11.2008. By thls appllcation, the plalntlft of the piaint to Incorporate 6(A), 6(8) and 6(C) In the plaint. ! <: '<... -^ The plalrtlff, by way of amendment, Is that In of the admission by the in his wrltten statement he has now become of the and that the by hlm to the the suit are are The syit was recorded a© land, The to the principles of estoppel, walver are against the.defendant. The objected to the 'v application by statlng that the amendment is unnecessa.ry been so ffled to the proceedlngs. (4) The had an under: Order 6 17 of the of CwlS Procedure the triai Coiirt which wfas.eartl.er on 20.08.2008. The order of the triaj Court in W.P. (227) No.4846/2CM)8. The sald writ petltjon by thls Coyrt on 08.04.2009. In the writ as as In the writ petitlon, the jnterlm by this Coyrt to ftie effect that the go on foyt the final judgment shatS not be tiSI the of the writ petltlon. Thus, the sult anct the of the now recorded as stated by the counsel. (5) Relylng on the In MR foetwee&tiieAsociated Publishers Ud.. Vs> K. *Ar¥a' for the of to be in the ptalnt, may not be avallabte to the pialntiff. He on the judgment of Court in MJs. ^ V. M/s. SOEIS & Ors. In ^ /^ \;~~— -3- SCW ©644t& that th® to by the trial Court. (6) Per coynsel for the has on the of Gourt In Bai V% Padmalsitha arsd afiother^009 Vol^.SGC 409 and that on the of of the already the . Instant be (7) In the of Vldva Bai Vs. the Hon'bie Covrt has thus In 10,11,19 and 20. "10. By of the Clvil Procedure Act, (Act 22 of 2002), Inter alla. Inserted a to Order 6 17 of t.he Code, which as yndler: " Provlded no appllcatlon for be aft.er the %rla( has commenced, the to the conclusion that ln: of due the party not the before the oommencement af trial" It Is In a mandator^ form. The coyrt's jurlsdlctlon to sych an Is the • are vlz. it to a 'm of due the not the the commencement of the trial. 11. From the by the trial Judge, It Is the not to the precondlitlon. The questlon, therefore, whlch TGT constcteratlon Is as to whether the trial had or not. 'n ow oplnlon, It dld. The the are framed is the of flrst Provteicns of the Code of Clvsl Procedure of varlous at of the Flllng of an in lleu of examln.atlon-ln-chlef of the In our oplnion, to "commencement. .of / -fl- 19. tt Is the primal of the to as to whether an amendment is necessary. to the real the Or.ly If sych a te the amendment Is to be However, provlso to Order 6 Rute 17 of the Code the power of the It an, embargo. on of Its jurisdtetton, The jurtediction, m a of thre te llm'rted. Thus, vnless the faci, as is to be the w'ril RO jurisdtotlon at a.!i to the of ths plalnt.. %0.. Ip Advocate Sar Assn.v. of (2005) 6 SCC 344 this Gourt has the of the said provlso. In ; any event, the constitutionality of the Ss not in ys nor we In thte are to go Into the questlon. Furthermore, .the judgment of the Court not the test of judtolal revlew. St has not the trial -Jud^e exceeded Its In passing. the order it. 11 not that any error of law has by It. The High Court did not with the contentlons before 'rt. St has oot its on $he jurisdictionai The judgment, therefore, be which is Bet (8) . In the of M/s. Bullders arsd V^ Mte. Sons & Ors. In 6644 the Hon'bie Supreme Court has that for amendment, the Court has to see whether the are Imperatlve for and of the case, whether the amendment Is or malafide, whether ?t other whtoh cannot be compensated In terms of money, refusing the to m of lltlgation and whether it frie of ths sult, In €1 of ^ / the the Hors'bte Apex Gourt has that the first. -5~^ which be satlsfied the can be aliowed t?y the Court Is whether such te for the of the reat 'm controversy. 1f that is not the amendment cannot be allowed. Thls te the test ^4ilch govern the Courts' in or refusal of the (9) In the present case, the plaintlff has nwv to the written to plead that the defendant te the of the property and that %he statement by the hlm to the that the su'rt iand are are and the prlnclptes of estoppei, waiver and acquiescence are the defendant. (10) The 1©the sylt for specifte of the to sell, In such syft, the proposed vendor Is to- on the tftle which he had on the of the of the and that the plaintiff would be at to the the Is bound to honour the and the This Court thus.finds that the are not for' adjudlcation ofthe sylt. (11) In the sult, the that the of the Order 18 4 of CPC has and of the of the Order 18 Rule 4 are to be }t is that the plalntlff has not the origlnal therefore, the pSaintlffs cross be and may be ailowed. The matter was thereafter fmed for of the examlnatio.n ofthe plasntiff and hls rema'inmg witnesses. Thys, it Is apparent that on the date when the oreler the trial has commenced In the sult, as by the Hon'bie Court in the 1 s t- -6- case of Vid¥aBal Vs, Padmalatha Isvora) that the the evidence under Order 18 Rute 4 are exchanged .wlll be the of commencem'ent of the trial. (12) The to. Rute 17 of Order 6 provides that the appllcalion for amendment of rsot be allowed after the trml Is cxwnmenced, uniess the Gourt comes to ttie conclusion m of due dillgence, the party could not the matter the commencemert of the triat. Exam'mins- the amendment appiication by the plaintlff (Annexure-P/5) to the requiremerrt to of Order 6 I? has or not it wouid be seen that the plalntiff has not as to how he was precluded from ralsing the before the commencement of the In of due diligence. It te common t.hat the "rrltten b.y the on 17.11.2006. The amendment appllcatjon has been to'o anc! that too when the tria.1 had already commeroed. (13) In the oplnlon of thte Court, the trlaS Court has not committed any error of Jaw or jurisdlGtlon by the appllcation for amendment In the plalnt. There p.o. on the face of the In fact or in law, the petltioner has to demonstrate anythlng In the impugned of jurisdictlon by this Court 227 of the Constitution of (14) The petition fails, and Is hereby . (15) There te no order as to Prashant Kumar Mishra Judge Billl'