CWP-7604/2010 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. SB CIVIL WRIT PETITION NO.7604/2010 Baliya & ors. Vs Chhoti Lal & ors. DATE OF ORDER : 25/05/2010 HON'BLE MR. JUSTICE AJAY RASTOGI *** Mr. NK Joshi, for petitioners. Instant petition has been filed against the order, whereby the application under Order 6 Rule 17 CPC seeking permission to amend the plaint file by the plaintiff-petitioners way back on 21/08/1980, has been rejected. The plaintiff-petitioners filed a suit for declaration and perpetual injunction against the defendant-respondents in the Court of Sub- Divisional Officer, Jaipur in August, 1980. It appears from the record that on the basis of the pleadings nine issues were framed but the learned authority examined two issues only and the suit was ultimately dismissed. However, the matter travelled upto this Court and vide judgment dt. 11/08/2008 passed in CWP- 7915/2007, this Court observed that nine issues were framed on the basis of the pleadings of the parties and it is expected from the authority to examine and record its finding on all the issues but at the same time further observed that in absence of any factual foundation regarding the ingredients for CWP-7604/2010 2 raising the plea based upon adverse possession, it was not open for the learned Revenue Appellate Authority to give any finding with regard to adverse possession and while remitting the matter to be examined by the Authority afresh, this Court observed that the matter may be examined on merits subject to deletion of the direction that no issue with regard to the adverse possession needs to be framed. After the judgment of this Court, an application under Order 6 Rule 17 CPC was filed by the plaintiff-petitioners seeking amendment in the plaint before the Authority which was rejected vide order dated 24/06/2009 against which revision petition was preferred before the Board of Revenue which also met with same fate and rejected vide order dt. 11/03/2010. The main thrust of the submission of counsel for plaintiff-petitioner is that though the suit was filed in August, 1980, however, the amendment, which the plaintiff-petitioner, is seeking is based on the material on record and ultimately the relief, which the plaintiff- petitioners have claimed, will remain the same and in such circumstances, once the matter has been remanded back to the Authority, if the amendment sought for is permitted, will not cause any prejudice to the parties in dispute. CWP-7604/2010 3 In the opinion of this Court, the submission is without substance for the reason that under Rule 6 Rule 17 CPC, the Court may consider the amendment sought for, if necessary for determining the real question in controversy between the parties before the trial commences. However, thereafter if the Court comes to the conclusion that despite due diligence if the party has failed to raise the matter before commencement of the trial, the same can be considered at any stage thereafter. In the instant case, on the basis of the pleadings, the matter finally travelled upto this Court and while passing the judgment dt. 11/08/2008, it was specifically observed that there is no pleading inregard to the adverse possession being claimed by the plaintiff- petitioner and at the same time the directions issued by the Revenue Appellate Authority stood deleted and it was further observed that no issue with regard to the adverse possession needs to be framed. Taking note thereof, the petitioner filed application under Order 6 Rule 17 CPC which cannot be said to be left despite of the due diligence seeking amendment in the plaint when the trial has commenced way back in 1980. Taking note of the observations made by this Court in the judgment referred to supra dt. 11/08/2008, the Revenue Appellate Authority CWP-7604/2010 4 and the Board of Revenue rejected the application filed by the petitioner. I find no manifest error being committed by the courts below in passing the order impugned which may call for interference. Consequently, the writ petition has no substance and it is hereby dismissed. [AJAY RASTOGI], J. Raghu/p.4/ 7604-CW2010-final.doc