HIGH COURT OP cmTATTiSGARH A-r HTT^SPTO W.P. r227^No. 5446 of 2008 PETITIONERS RBSPONDENTS Smt. VitnlaBai and another Versus Mohd. Iqbal and another O R D ER Postfor ^-9-2009 Sd/- N.K. Agrawal -s. Judge 6^ jy f'ii.i:;li.J!J; HIGH COURT OF CHHATTISOARH AT BILASPUR W.P. (22?) No. 5446 of 2008 PBTmONERS DEFENDANTS < 1. Smt. Vimla Bai, widow of Late Udhav Gharade, aged about 65 years, resident of Awanti Vihar, Raipiu-, Raipur (CG) 2. Hemant Swamy, son of Shri Jagannath Swamy, aged about 48 years, resident of Awanti Vihar, Ralpur (CG) Versys 1. Mohd. Iqbal, son fo Shri SheUdi Jumman, aged about 36 years, resident of New Iqbal Hotel, Rehmanio Chowk, Raipur 2. Feroze Khan, son of Shri Sheikh Jumman, aged about 39 years, resident of New Iqbal Hotel, Rehmania Chowk, Raipur (Sindle Bench; Hon'ble Mr. N.K. A&aswal. J.l RESPONDBNTS PLAINTIFFS Present : Shri B.P. Sharma with Shri Vivek ChoT Advocates forthe petitioners. Shri Raghvendra Pradhan, Advocate, for the respondents. ORDBR (^-9-2009) 1. The instant petition is directed against the order dated 6-2-2001 passed the Gourt of lst Civil Judge Class II, Raipur in Civll Suit No. 21-A/84 whereby and whereunder fhe appMcation for amendment filed by the plaintiffs was allowed. Jf- 2. Brief facts of the case are tfaat fhe plainti£Fs/ respondents instituted a suit for permanent injunction against the petitioners/defendants in the year 1984, thereafter in the year 2001, the plaintifFs moved an appUcation for amendment seekinj amendment in tfae prayer clause on the groiind fhat there is SODIC contradiction between fhe title of the ,suit and the prayer claimed. The said amendmenf -f ' ff i ' i?" " 7 'C v ^ 4. was allowed by ftie trial Court vide its order dated 6- 2-2001 holding Chat the mistake occurred in fhe prayer clause seems to be clerical aad also it does not change ftie nature of the suit. Against fhat, fhe petitioners preferred a revision. The revision was dismissed by this Court vide order dated 1-4-2005 (Annexure P-1). After about 3 years froia. ftie date of dismissal of fhe revision, fhe tnstant petition has been preferred by the petitioners. Shri B.P. Sharma, learned counsel appearing for the petitioners would submit that fhe sald amendment has been allowed by the tarial Court after alapse of about 16 years on a date wheh the relief claimed was become hopelessly barred by time. He woiild further submit that any amendment m procedural law would take effect retrospectively. By way of amendinent in the year 2002 in C.P.G, a proviso was inserted in tfae provision contained m Order 6 Rtde 17 of C.P.C. and the amendment which was allowed by fhe triat Court, is prohibited i.inder the said provision. Per contra, Shri Raghvendra Pradhan, learned counsel appearing for fhe respondents would submit fhat against fhe order unpugned earlier the petitioners preferred a revision which was dismissed by fhis Court as not mamtainable in fhe year 2005 and fhereafter after a lapse of 3 years, the instant petition has been preferred which deserves to be dismissed on fhe ground of delay and latches. He would further submit fhat a bare perusal of fhe averment of (he plaint would reveal that tn substance, fhe respondents / Plamtiffs have averred in fhe plaint fhat they are in possession of the suit property and fhe petitioners/defendants are interiering in it. The suit was also valued accordingly. But due to mistake in ftie prayer clause, relief of ltf. • /- N ^- jy lilT-ii; 6^ possession has been claimed which is perse contrary to the plaint averments. When it was noticed by tfae plaintiffs/respondents, they have Hioved ^, for amendment of plain;t. He would furfher submit fhat tlie taipugned order of amendment has been passed prior to insertion of proviso m Order 6 Rule 17 of C.P.C. and, fherefore, the einbargo placed by the said proviso is not applicable in fhe facts and circumstances ofthe present case. He woiild further submit that as far as the question whether the relief is barred by time or not, the petitioners / defendants are ahvays at liberty to raise such plea in the written statement in consequence of the plamtiffs' amendm.ent. He would furfher subinit tfaat while exercising the power conferred under Article 227 of the Constitution of India, this Court should not interiere in fhe order impugned. I have heard leamed counsel for the parties and perused fhe record as also the unpugned order. A bare perusal ofthe plaint averments would reveal that in substance fhe suit has been filed agatnst the petitioners claiming relief of permanent mjunction to restrain fheiu froia uiterferiag in possession and accordingly the suit was valued. The relief clause seems to be contrary to the plaint averments. It is also not out of place to mention fhat the petition was preferred after a lapse of 3 years; the amendment was allowed m the year 2001 i.e. before coming into force of Amendment Act, 2002 in C.P.C. On the face of record, it seems that the prayer clause is contrary to the averments made in the plaint and in view of the above, it cannot be sald that the trial Court has committed any Ulegality or irregularity leading to marufest injustrce so as to invoke extra iOTdinaiy ^, 'si ^. \. jurisdietion of this Coiirt under Article 227 of the Constitution oflndia. 7. It is weU settted principle of law fhat fhis Court, in exercise of its supervlsory jurisdiction under Article 227 of the Constitution of India, should refrain itself from interfering wifh the order passed by the Court below except in such cases where perversity, illegality or jurisdictional error is writ lai^e on the face of the record, which is not in the present case. 8. It is however made clear fhat fhe petitioners are at llberty to ralse fhe plea of Umitafion with regard to rellef claimed by way of consequential amendment in their written statement, if so advised and if such applleation is filed by the petitioners before the trial Court, fhe trial Court shatt decide the same on its own merits in accordance with law. 9. TIiepetitionisdisposedofwifhaboveobservation. SdA N.K.Agrawai \ Judge •y.