s.iftj-^ nM^fi ||te^£ ^Si'^^ ... *0^-«-~t,-»i-(,-^. IN THE HIGH COURT OF JUDICATURE , AT BILASPUR (C.G.l PETITIONERS: ^ 1. DEFENDENTS: 2. ^ 3. 4. RESPONDENTS: PLAINTIF: Defendant No.^ 1. ^2. ^3. 4. W.P. 227 N0. f ^ ^ /200^ Murlidhar Venna, S/o Ghana Ram Verma, aged about 75 years. Jai Prakash, S/o Murlidhar Verma, aged about 25 years. Lekhchand, S/o Murlidhar Verma, aged about 22 years. Smt. Kunjbati, (kept) W/o Murlidhar Verma, aged about 46 years. All R/o Vill Belargondi, Tah. 8s Dist: Rajnandgaon (C.G.) Vs Smt. Bunda Bai, W/o late Nageshwar Venna, aged about 50 years. Chinta Haran, Alias Kripa Ram, S/o Nageshwar Verma aged about 32 yrs. Ramkrishna, S/o Murlidhar Verma, aged about 56 years. All R/o Vill. Sevta Para, Dongargaon, Tah. Dongargaon, Dist: Rajnandgaon State of C.G., Through Collector, Rajnandgaon (C.G.) PETITION UNDER ARTICLE 227 OF THECONSTITUTION OF INDIA JB ^ \y <fJ>' HLGH COURT OF CHHATTISGARH AT BILASPUR SinflleBench: Hon'ble Shri Justice Prashant Kumarifljshra Writ Petition f227) No.1249 of 2009 Petitioners Respondents versus Murlidhar Verma and others Smt. Bunda Bai and others Present: Shri B.P.Gupta, counsei for the petitioners. Shri Pramod Verma, Senior Advocate with Shri Sumit Verma, counsel for respondents No.1 to 3. Shri Sushil Dubey, Government Advocate with Ms. Sangeeta Mishra, Panel Lawyer for the State/respondent No.4. WdLPetiiLon under Article 227 of the Constitution of Indja Q! ORDER (Passed on 4In February, 2010) Heard learned counsel appearing for the parties finally. 2. in a suit for partition and for declaration of equal share of plalntiffs No.2 and 3 along with defendant No.1 and for a further deciaration that defendants No.2 to 5 have no right, tltle or Interest in the suit property v/ith further prayer that the alienation made by defendant No.1 in favour of defendant No.2 is not blnding on the plaintiffs, the defendants' applications under Order 6 Rule 17 of the Code of Civij Procedure, 1908 (henceforth 'the Code, 1908') and Order 14 Ruie 5 ofthe Code, 1908 have beenrejected by the trial Court vide Impugned order dated 31-1-2009 passed in Civij Suit No.36-A/2008 ^ (Annexure P~1). / 2- '.r ^tml»»HW 3. Admittedly, after framing of issues, the piaintiffe have aiready closed their evldence and when the matter was fixed for recordlng evldence of the defendants' witnesses, the application under Order 6 Ru!e 17 of the Code, 1908 (Annexure P-5) was fiied on 29-9-2008 proposlng addition of new paragraphs 1(A), 1(8) and 1(C) in the written statement to the effect that defendant No.1 has three daughters, who have not been joined in the suit and, therefore, the suit is not maintalnable for non-joinder of necessary parties and the sult is not maintainable in Its present form. 4. jn the application under Order 14 Ruie 5 of the Code, 1908 (Annexure P-6), the defendants have proposed that three additional be framed for being adjudicated in the suit. They were as to - (1) whether the suit is not malntainable for non-joinder of necessary parties, (ii) whether defendant No.3 (wrongly mentloned in the proposed additional issue as defendant No.3, whereas it is plaintiff No.3 Ramkrishna as stated in the defendants' written statement) is of unsound mind and (iii) whether the suit is not maintainabie in its forrn. • 5. Shri B.P.Gupta, iearned counsel for the petitioners submits that the learned trial Court ought to have allowed the defendants' appijcations for proper and effective adjudication of the suit and the iearned trial Court should have bsen liberal in aiiovving the amendment appiication in the interest ofjustice because the suit is not maintainable for non-joinder of necessai-y parties Inasmuch as the daughters aiso have In the suit property. He alsosubmits that regarding non-joinder of necessary parties and maintainabitity of the suit are •;?Tsa%. -3- ^- necessary for effective adjudication. He further submits that the unsoundness of mind of piajntiff No.3 Ramkrishna is an important fact because it goes to the root of the inasmuch as if he is of unsound mind, the suit on his behalfwould not be maintainable. 6. Shri Pramod Verma, !earned Senior Advocate for respondents No.1 to 3, on the other hand, has argued that the learned tria! Court has rightly rejected both the applications, which had been filed after enormous deiay v^ithout explaining it and without explaining as.to hovv the proposed amendment couEd not have brought at an earlier point of time. He also submits that the issue regarding unsoundness of mind of pialntiff No.3 Ramkrishna has been verifled by the trial Court on 17-10-2003 while hearing the defendants' application under Order 7 11 of the Code, 1908 and the learned triaE Court after havi'ng plaintlff No.3 personally was that he is of sound mind. 7. The appjicatjon under Order 6 Ruie 17 of the Code, 1908 was on 29-9-2008 a.fter the evidence of the plaintiffs was compieted. In vs. aod 2 409, the Hon'bie Supreme Court has held thus; "10. By of the ClvEI Procedure Code (Amendment) Act, (Act 22 of 2002), Parijament infer aiia inserted a to Order 6 Ruie 17 of the Code, which reads as under: "Provided that no appEication for amsndment shal! be after the trial has commenced, the court to the conciusion that in spjte of due dltigence, the could not have raised the matter before the -I commencement oftrial." 1 1 '% -Z( it Is couched in a mandatory form. The court's jurlsdiction to a!!ow such an application is taken away unless the conditions precedent therefor are satisfied viz. it rnust come to a conclusion that in spite of due diSigence the parties could not have raised the matter before the commencement of the tria!. 11. From the order passed by the Jearned trial Judge, it is evident that the respondents had not been abie to fuifil the preconditjon. The question, therefore, which for consideration is as to y/hether the tria! had commenced or not. !n our opsnlon, it did. The date on which the Issues are Is the date offirst hearing. Provisions ofthe Code of CJvil Procedure envisage taklng of various at different of the proceeding. Filing of an affidavit in iieu of examinatjon-jn-chief of the witness, jn our opinjon, would amount to "commencement of proceeding". 19. !t is the prima! duty of the court to decide as to whether such an amendment is necessary to decide the reai dlspute between the parties. On!y if such a condition is fuifllied, the amendment is to be ailowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the of the court. It puts an embargo on exercise of its jurisdjction. The court's jun'sdictjon, In a of this nature js IJmited. Thus, the jurisdlctjonal fact, as envisaged therein, Is found to be existing, the court wii! have no jurisdiction at a!I to ai!ow the amendment of the plaint. 20. In Safem Advocate BarAssn. vs. Unlon of!ndia, (2005) 6 SCC 344, this Court has upheld the vaEidity of the said proviso. In any event, the constitutionaiity of the said provision is not in question before us nor we in this appeal are required to go into the said question. Furthermore, the judgment of the High Court does not satisfy the test of judida! review. Jt has not been found that the learned tria! Judge exceeded its jurisdiction in passing the order ...--^••s^.. :-fe, "\ % h 1 J'a tS^/ jwniiuaii^^^. f • -5- Impugned before it. it has also not been found that any error of law has committed by it. The High Court did not with the contentions raised before it. !t has not applied Its mind on the jurisdjctionai issue. The impugned judgment, therefore, cannot be sustained, vvhich is set accordingiy." 8. Shri B.P.Gupta, iearned counse! for the petitioners has relied on andano^ervs. Pi-abhakar Gajansn and AiR SCW 422 to subms't that the appSEcation for amendment should have been aiiowed. 9. !n the opinion of thls Court, the learned tria! Court was justified in rejectjng the defendants' prayer for amendment c!osing of the of the plajntiffs. TEie defendants themselves have moved this to disdose that defendant No.1 has three daughters, v/hich fact was wlthin his knowiedge on the of filing of the written therefore, by virtue ofthe proviso contained in Order 6 Rule 17 of the Code, 1908, It cannot be said that the defendants were prevented by any sufficient cause or that they could not have gathered knowledge of the fact in spite of due diligence. In view of the said iega! positjon, the appljcation for amendment under Order 6 Ruie 17 of the Code, 1908 has rightly rejected. 10. comjng to the appiicatjon under Order 1 4 RuSe 5 of the Code, 1908, on perusai ofthe appEication, it would appear that out of the addltionaj Issues, two are regardlng non- maintainabiljty of the suit on account of non-joinder of and on account of not bejng maintainable in its present form. Et is trite !aw that pjea regarding non-maintainabijity of the suit for non- ^ ^^^^^ -^.K "'^'^ i 1 '^-; ^ -^ -^- <r^ joinder of necessary parties has to be raised at the eariiest posslble opportunity. The proposed No.3 regarding non-maintainabiijty of the suit In Ets present forrn is too vague to attract the provlsions •contained in Order 14 Ru!e 5 of the Code, 1908 for framing an jf that is suggestive of the issue lunacy of j3!a;'ntjff No.3 Ramkrishna aiso it wouSd be apt to to the triai Court's order 17-10-2003 when the Court had pjaintiff No.3 and found hlm to be of sound mind. In the opjnion of this Court, the trial Court was right in dismissing the appjjcation under Order 14 Ruie 5 ofthe Code, 1908 also. Here again it wouid not be out of piace to mention that this application was aiso filed the evidence of the plaintlffs was closed. If the defendants' are allowed, it would have the effect of reopening of the triaj, tEierefore, for this reason aiso, both the appEJcations have rightly by the trial Court. 11. There no error apparent on the face of the record or In of jurisdictjon commitied by the triai Court so as to warrant ofjurisdJctiQn under Articte 227 ofthe Constitution of india, the writ therefore, and js hereby dismissed. No ora'er as to Sd/- Prashant Kumar Mishra Judge