@w IN’THE HIGH COURT OF JUDICATURE AT BILASPUR WRIT PETITION (Ar‘r.227) NO. ?285— OF 2009 PETITIONER / Shiv Kumar Pa‘rel, son of La’re (Defendum) Si’rar‘am PaTel, aged abouT Etwyw years, residem‘ of Village Mandhar, Sub-TehsH Dharsiva, DisTr'icT Raipur (CG) Vs RESPONDENT /: Nanku Ram Patel, son of LaTe (PmmTiff) Dukalharam Pa‘rel, aged about §%O)M n .I‘ ’55 years, resid'enT of Village --Q"£g‘:--"’M Mandhcxr:‘ Sub—Tehsil Dhar'siva, Distric‘r Raipur‘ (CG) PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA r .w i W H‘GH COURT OF CHHATT!SGARH AT BILA$PUR Singie Bench: Hon’bie shri Justice Prashant Kumar Mishra Writ Petitign 12g?! Nu. 7285 QF £009 PETtTtONER Shiv Kumar Patel Versus §ESPONDENT Nanku Ram Patel $hn’ Kshit§z Shanna, counse! far the petitioner‘ 3hr§ AK Prasaé, counsei fer the respondent. WRIT PETiTiON UNEER ARTICLE 227 OF T§E CONSTITUTION OE INDIA ' ORAL ORDER (14.09310) Chalmnge in this petition under Article 227 of the Qen5timtion of innia is to the ercter paeeed by the trial Court on OM 2—2009 etiowing piaintiff’$ appticatinn under Order 6 Rute 17 of C.P.C, permitting him t0 amend the piaint‘ (2) The suét for dectaratiun Qf title and permanent injunction has been preferred by the piaintifffrespondent on 13092Q04, The defendant/petitioner hes eubmitted we written statement on 1641— 20G4 eieng with a enunter ciaim eeeking recevery of possessien of three roams in the edit ‘houee. Piaintiff’s evidence wee recorded 0n "i 6-GS~2QOS, ' (3) Awarding te the .piainttff he hae purchased the euit houee fer W3 RSAQQQGI— / mseeeeiun en the said date by in an unregietered instrument from one Rukmani Bei, the mether ct the ciefendent, on 08~O&20QQ and he was settled. in CW {4) The defendant in his written statement denied the transaction on which ihe plaintiff has baeecl his ciaim and stated that Rukmani Bai was- never in poeeeseion 0f the suit heuee. The defendant pieacled that he was. in poseeeeign ef the suit houee, however the plaintiff has enereeehed upon three meme in the euit hcuse which deserves t0 be deiivered te the defendant. The piaintiff has tited his written statement te the eeunter ciaim submitted by the defendant en 23~02~2005t {5}. The subject applieatien fer amending the piaint was submitted on it-wzaQa. in this applicatien the plaintiff seeks to amend the piaint to seek. recovery of possession of two rooms on the ground that the defendant is in iiiegai possession of those two rooms of the suit house. it is stated in the eppiioation that the defendant dispossessed the oiaintiif in January, 2064 and that possession of the said part of the house shouid be detivered to the ptaintiff. The valuation of suit has been changed and the suit for declaration and permanent injunction has new been oonverted into a suit also for delivery of possession {6i The trial Court has granted the application after observing that the amendment can be allowed at any stage of the suit and even if the prayer for amendment is belated the same should be allowed by imposing cost because the amendment shaft prevent multiplicity of the , iitigation. if?) in the matter of Wdyahar’ and Others Vs. Padmafatha and another reported in 2009 {2) SCC 409 the Supreme Court has held thus in para Vii and 19 of the judgment :- “11, From the order passed by the teamed trial Jedge, it is evident that the respondents had not been able v3,— to fumi the said precondition. The question, therefore, which adses far consideratian is as to whether the trial had cammenced or nut. In our opinfon, it did. The date on which the issues we framed is the date af first hearing. Previsiens of the Code 0f Civil Procedure envisage taking of varieus ezeps at dh‘ferent etages af the proceeding. Firing 9f an affidavit in h‘eu af examinatien—in—chief hf the witnees, in our opinion, wautd amaunt ta “commencement ef pmceeding". “#9. it is the primal duty cf the court fa decide a5 to whether such an amendment is necessary to decide the reef diepute between the parties. Oniy if such a condition is fuifiiied, the amendment is to be aliowed‘ Hewever, praw‘se amended to Grater 6 Ruie 17 cf the Cede restricts the power of the court. it puts an embargo on exereise of its jurisdictien. The court’s jurisdiction, in a case of this netcre is iimited. Thus, untess the jurisdictianai fact, as envisaged therein, is found to be existing, the court wiii have no jurisdiction at aii to aliow the amendment of the pieint, “ (8} In the matter oi Aikapuri Cooperative Housing Society Limited vs. Jeyantiohei Naginhhai {deceased} through LRs. renorted in 2009 {3) scc 467 the Hon’bte Supreme Court has heid thus in pare 18 of the report. “t8. There cannot be any doubt or dispute that an application for amendment of the ’piaint seeking to introduce a cause of action which had arisen during the pendency of the suit stands on a different footing than the i one which had arisen prior to the date oi institution of the i suite We have noticed hereinbefore that the respondent- i eiaintifis in their appiioation for amendment of the plaint, themseives acoepted the tact that the appeliant herein not only had fiied a suit prior in point of time to the suit i r d//V med by the decea$ed respondent, but had also obtained an injunction as a resuit whereof they did not obtain effectWe pnsgession of the suit land, if that be so, in 0ur opinion, the respandentplaintiffs in effect and substance are saeeking to atter the ba$ic structure Qf the suit which in $amgam Kumar repmted m (2002) 7 SCC 559 itseW hasx bean heid to be impeymissibb.“ {Q} Leamsd ceunse! far the respcndent has placed retiance an the gudgment 0t the Supreme Ceurt in the case at Sarender Kama: $itarma Vs. Makeart $mghreparted in 2009 (10) SCC 626 t0 argue that amendment sen be attnwed at any etage of the suit to dc fut! and eemptete juetice and t0 avaid muttiplicity ef titigation. {tit} in the present caee when the apptication far amendment nf ptaint was maved the ptaintiff‘s examination was already Dyer. The suit wee tited on 1&G9—2QG4, hewever the propoeeci amendment makes a eieadéng that the pieintiff wee dieposeeesed in January! 2004. V Thus the fact ef diepeeseeeion wee within the knowiecige of the eiaintiff on the date ef tiiing of the suit. The previseto Order 6 Ruie 1? 0f G.P.C. grandee thet the amendment can be engined after the cemmencement ef ti'iei when the petty seeking amendment prooves that in spite Qt due diiigenee he ceuid ' net have raised the matter befare the commencement of triat. Qn perusai at the appiication under Order 6 Rate 17 ef C.P.Ci it weuid appear that the piaintitf has made a etetement in para 9 of the appiicatien that the amendment had ecceeianed becauee of eubeequent event. Thus, there ie no piea that in spite e? due diiigence the piaintiff eeuid net have raised the matter feetere cemmencement at triai. in fact the statement that the amendment ie based en euheequent event is contrary to the amended W (5.. piEading whigh is pmpesed in para 3 of the appiicatian to say that the piaintiff was. di$possessed in January, 2004. When the suit itseif was med an 13-09-2004, plaintiff's dispas$e$sian in Januaw, 2004 cannot be a subsequent event. {11) in the matter of Vidyahai and Others ($upm) the Hon’ble Supreme Court has observed that the previse appended to Order 6 Ruie 1.? of C‘P‘C. restricts the pewer at the Court, it puts an emhargu en exerciee 9f its jurisdiction, The Court’s juriediction, in a oase of this nature is limited, Thus, unless the-jurisdiotionai foot, as envisaged therein, is iound to he existing, the £30m wiii have no gurisdiction at aii to aiiow the amendment of the plaint, {12) in the present case the amendment appiioation was moved after oommenoement of trial, therefore unieee the piaintiff satiehes the Court that in spite of due diligence the amendment Gould not have been raised before the commencement of trial, the triai Court does not get juriediction to eonsider the plea for amending the piaint. The plaintiff has failed to cross the jurisdictionai embargo. {13) in view of the discussion as above, in the opinion of this Court the triat Court has committed an error of iurisdiotion by permitting the ptaintitffrespondent to amend the plaint. The order-suffers from materiat irregeiarity in exercise of jurisdiction. (t 4) The petition succeeds and is aiiowed. The impugned order is set-aside. Sd/“ i ’ ‘ Prashant Kumar Mishra‘i Judge