IN THE HIG WRIT PETITION (227) No. (415m OF 2009 $WG£E $E§¥§E a/ - PETITIoNERs (Defendanfs) RESPONDENTS Plainfiffs fL ; H COURT OF JUDICATURE AT BILASPUR f1. Mehrunnisha ->‘9&"" (wrongly menffqned as ’Mehrunni' in fhe impugned order),. widow of Lafe Mohammad Hussain Hadi. 2.Rizwan, son of Lcn‘e Mohammad Hussain Hadi, aged about 37 / yeqrs. / Hussa'uy Hadi, aged abouf 34 / years. 4.5habana, daughter .of Lafe Mohammad Hussain Hadi, aged abouf 32 years. All residen‘rs of _Fawwara Chowk, Byron Bazar, Raipur, Tehsil and Disfricf Raipur (CG) y; If Abdul Salim Khan, aged abou‘r 85 years, son of Shri Abdul. Rahim Khan, residenfr of Junir Line, Bilaspur, Disfricf Bilaspur (CG) 2. Mohammad Riyazur Rehman, ‘aged abouT 37 years, son of Mehfooj‘ Rehman. 3. Mohammed Im’riyazur Rehman, / aged abou’r 38‘years, son of Mehfooj Rehman. gyw 3.Imran, son of Lafe Mohammed fyk L No.2 & 3 are residents of Danipara, Raigarh, Tehsil & Districf Raigarh (CG) Mohammad Lafifur Rehman, 4. aged 51 years, son of Wahid Rahmon. ' Mohammed Mumfazur Rehman, aged 4O years] son of Wahid Rahman. Mohammad Aminur Rehman, aged 40 years, son of Wahid Rahman No.4 ’ro 6 are residents of Purani Basfi, Kharsiya, Tehsil Khar'siya, Disfr‘icf Raigar‘h (CG). WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA ’ Writ Petition (227) No.6124l2009 > Mehrunnisha and others Abdul Saiim Khan and others Shri B.. Shanna, couei f th pitioners. Shri Latif Rahman, counsel fo he respondents. Writ Petition under Article 227 of the Constitution oi India ORAL ORDER (0.01.2o10) The matter is listed today for finl disal at e motn ge. a pos th io sta (2) Leamed counsel for the parties are heard finally. (3) ln a suit for ejectio and damages filed the laintis in February, 1993. Written statent wa iled by t sol efendat n the month of arch, 1994. Evidence f the plintiffs ere recorded i the month of April, 200. ln the course of trial, the sole dfendant died on 30.05.2004. The egal heirs of the deced defendant were brought on record on 01 08.009 in pursuance of the order of he trial Court on 21.07.2009. The plaint was amended on 30.07.2009 and thereaft written statement was amended by the newly added defendants who are the legal heirs f the sole decead defean on 10.08.2009. The newly added defendants who are t getioners herein had thereafter moved an application under Order Rule 17 of the C.P.C. on 01 09.2009 and also an application underIOrder 8 Rule 1-A(3) of the C.P.C. to amend the..written statement and to submit certain documents in support of it to prove the proposed amendments. 7:, The plaintiffs opposed the proposed amendment made in both the / L applications. The trial Court had dismissed both the applications. The l said order of the trial court passed on 14.09.2009 is under challenge in this petition under article 227 of the Constitution of lndia. K HIGH COURT OF CHHA1TISGARH AT BILASPUR Singie Bench: Honble Shii Justice Prashant Kumar Mishra Petitioners Versus P ns or e et r t 4 n by pff me s f he e dn i M o a w n 0 e l “ ase 2 t er o se ndt he ti 6 (4) Shri B.P. Shanna, leamed counse! for the petitioners, relying upon the \aw laid down by the Hon‘ble Supreme Court in the matter of Jagdish Chander Chatteq'ee and others Vs. Shri Sri Kishan and another, reparted in {1972) 2 scc 461 (para 10 ), urged that the proposed amendments are personal to the petitioners and no part of the amendments was persona! to the deceased. According to him, the petitioners have proposed to set up the defence which is independent of the defece raised eartier by the sole deceased defendant and such piea sought to be raised by the petitioners now is not inconsistent. He submits that the trial Court has failed to exercise the jurisdiction and thereby committed material irregularities in exercise of jurisdiction. (5) On the other hand Shn Latif Rahman leamed counsel appeanng for the respondents strenuously urged that the matter is pending before the tnal Court since 1993 and the suit does not seem to came to an end in near future. He submits that the sole deceased defendant, who was the husband/father of the newly arrayed defendants, was aware of the existence of patta which was issued way back in 1998 and as such the proposed amendments is not bonafide. The leamed trial Court has rightly rejected both the applications and petitioners have not made out any case for interference under Article 227 of the Constitution of lndia. (6) l have heard learned counsel for the parties at length. lt is true that the matter is pending since1993 and also that this Court in W.P. No.1921/2008 had directed expeditious disposal of the suit within a period of six months from the date of deciding the application under, Order 22 Rule 3 of C P C ie on 21 07 2009 when the application under Order 22 Rule 3 of C P C was allowed (7) By the proposed amendments the newly added defendants, who are the legal heirs of the sole deceased defendant, have sought permission of the Court to amend that they are in possession of the ”i , suit present in their independent capacity by Virtue of lease granted by the Collector and as such the suit against them Is not maintainable. On perusal of the contents of the amendments application as weil as l the documents sought to be introduced in the application under Order l §rv<wv m l i l l \ \ ,V ‘ ’3’ 8 Ru‘e 1—A{3) of C.P.C., it appears that the petitioners are setting up their own independent defence and nothing was pereonai to the deceased soie defendant. Looking from another angie, parties to the suit shoutd be allowed to plead their respective cases under the law so that there may not be any possibility of reopening of the issues by any of the parties in the proceedings. Further more, after impleading the present petitionersllegal heirs of the sole defendant on 1-8-2009 and after amending the plaint on 30-7-2009 the newly added legal heirs/petitioners submitted their written statement on 10-8-2009. They moved the present application under Order 6 Rule 17 of the Code of Civil Procedure on 1-9-2009 meaning thereby that the amendment application was moved shortly after their impleadment. The newly amended provisions of Order 6 Rule 17 of the Code of Civil Procedure together with the proviso and the effect thereof have to be appreciated in the background of the case and the fact that the present petitionersilegal heirs of the sole defendant were brought on recdrd only on 1'8-2009 and the suit has not at all progressed thereafter. Since the present petitioners were not at all party to the suit before their impleadment, there was no occasion for them to raise the pleading about existence of lease (Patta) in their favour. Therefore, the present is a case where the petitioners could not have raised the matter before the commencement of trial, i.e., before their impleadment in the suit. This Court is of the opinion that‘leamed trial court ought to have allowed the application under Order 6 Rule 17 and under Order 8 Rule 1-A(3) of C.P.C. so as to afford the opportunity to the parties to proVe their respective ca’ses. At this stage, Shri Rahman, teamed counsel for the respondents have apprehended that if the plaintiffs are not allowed to set up their own evidence in rebuttal of the evidence and documents which may be brought on record by the defendants after l; the closure of their evidence, the plaintiffs may suffer irreparable loss. Shri B.P. Shanna, leamed counsel. for the petitioners very fairly lsubmits l that the plaintiffs also deserve opportunity to rebut any new I levidence which has been brought on re'co'rd by the defendants after allowing l their interim application. w W (8) in view 0‘ the above, the writ petition is aiiowed. The impugned order is set aside. Consequentiy, appiications undet Order 6 Rule 17 and under Order B Rule i-A (3) of C.P.C. are ailow'ed. After the ciosure of the defence evidence, the piaintiffs, may adduce evidence in rebutiai in accordance with iaw‘ The order passed by this Court on 27.1 ‘i .2009 staying the proceedings of the triai Court is Vacated, .The trial Court is now directed that it shaii try to dispose of the suit Within a penod oi three months from the date of receipt of a copy of this order Parties to bear their respective costs \ Sd/m Prashant Kumar Mrshra nil}, udge