,rgki’g} AFR HIGH COURT OF CHI-IATTISGARH AT BILASPUR WRIT PETITION (227) N0. 597 of 2009 Raigarh Distt. — Raigarh (C.G.) DEFENDANT 2. Nazul Offlcer, Raigarh (C.G.) Aged about 59 years, 2. Radha Krishna Shrivas S/o Late Barmanlal Shrivas, Aged about 49 years. Both R/o Near Dam Beladula, Kelobridge, Tahsil & Distt. Raigarh (C.G.) VERSUS RESPONDENTS : 1. State of Chhattisgarh, Through: The Collector, NON-APPLICANT/ President, Sikh Society, Raigarh (C.G.) b) 4. Anand Mohan Rabada S/o Late M.M.Rabana R/o Gauri Shankar Mandir Road, Raigar (C.G.) WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA SB: Hon’ble Shri Satish K. Agnihotri, J. Present: Shri Devendra Patel, Advocate for the petitioners. ' Shri Bhaskar Payasi, Panel Lawyer for the State. ORAL ORDER (Passed on 3 1“ day of January, 2009) By this petition, the petitioners/plaintiffs seek to challenge the order dated 20.10.2008 (Annexure P/l) passed in M.J.C. No. 10/2008 by the 3rd Additional District Judge, F.T.C. Raigarh, whereby the application for review oyhegrder'pated 01.03.2008, filed under order 47 Rule 1 of the Code of Civil Procedure, 1908 (for short ‘the CPC’) has been rejected, and the order dated 01.03.2008 (Annexure P/2) whereby the application filed by the petitioners under order 6 Rule 17 of the CPC for amendment, has been rejected. r The facts, in nutshell, are that the petitioners/plaintiffs filed a civil suit bein§ No. 10-A/2007 on 15.06.2005, for declaration and permanent injunction before the Ilnd Additional District Judge, Raigarh. During the pendency of the suit, the petitioners/plaintiffs f11ed an application under \ \.\ PETITIONERS : 1. Ripusudan Shrivas s/o Late Barmanlal Shrivas, APPLICANT/PLAINTIFF . . Order 6 Rule 17 CPC for amendment in the suit. That application was rejected by order dated 01.03.2008, holding as under: "WW@W$ WWWHE um§§imgmuwmwumanm aim mw—sm—n w.1it.%fr.§ma1’r:—uaa% $W—2o 3% um zo—Q,ét,?it,ét a% W1 1? at mum ww§mwuwm®u§mma€tm Waviq‘éuuétemmmwmuwm m—Wumwmanma’a‘tie—éwa? u%a§%a$uia#@§mqétetuu Wmmwuyummmdamwam —17 m.tfr.§11.ti¥r1%:rf$2i.s.o7dmw={stmm%w WEIR—(11% I” 3. Against the said order, the petitioners/plaintiffs frled M.J.C. No. 10/2008, under the provisions of order 47 rule 1 of the CPC for review of the order dated 01.03.2008, which has been dismissed by impugned order dated 20. 10.2008 (AnneXure P/l). Being aggrieved, the petitioners have filed this petition. 4. I have heard learned counsel appearing for the petitioners, perused the pleadings and documents appended thereto. 5. Order VI Rule 17 of the C.P.C provides for amendment of the plaint which reads as under: “17. Amendment of pleadings— The Court may at any stage of the. proceedings allow either party to alter or aménd‘his‘ pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of tria .” 6. The basic requirement is that the amendment is permissible if necessary for the purpose of determining the real question in controversy between the parties. The amendment sought for by the petitioner does not determine the real question between the parties in the pending suit. 7. The Hon’ble Supreme Court, in the matter of State ofA.P. and others v. Pioneer Builders, A.P.I has settled the principles governing amendment of the pleading which reads as under: “21 .......Nevertheless, one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. The following passage from the decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung succinctly summarieses the principle which may be kept in mind While dealing with the prayer for amendment of the pleadings: “All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit .......” Learned Court below has taken into account the reply filed by the defendants No. l and 2, wherein it is stated that for the same property, a Civil Suit No. 35-A/82 was filed by the father of the petitioner in the court of 3rd Civil Judge, Class II, Raigarh, which was dismissed on 14.08.1989 and subsequent appeals were also dismissed. The Court below has also taken into consideration that the plea of the petitioners/plaintiffs that after death of their father, on going through some documents, they came to know the fact, and accordingly sought for amendment. They have not specifically mentioned about the date on which they got the knowledge and from which document, they could get the knowledge. Earlier, in regard to the same suit land, a suit was filed by the father of the petitioners which has been disposed of and the petitioners have again filed the suit for the same property. Thus, the ¥ up l (2006) 12 SCC 119 \ facts which were sought to be incorporated by amendment were well within knowledge of the petitioners/plaintiffs at the time of f11ing of the suit. The amendments sought for may adversely affect the rights of the respondents/defendants. Thus, the review petition was dismissed. Having considered the facts situation of the case, this Court is of the opinion that no interference is warranted with the impugned order passed by the Court below, 10. It is well—nigh established that this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India should refrain itself from interfering with the order passed by the Courts below, except in such cases where perversity, illegality or jurisdictional error is writ large on the face of the record, which is not in the present case. Thus, I do not fmd any reason to interfere with the impugned order dated 22.10.2008 (Annexure P/S). 11. Without expressing any opinion on the merits of the case, the petition is dismissed in limine. No order asto costs. 12. Consequently, LA. N0. l, for stay, also stands dismissed. so! \ \ \ \\ Sa‘f‘sh J“¢ge > ' \ / 7' n. :. N \ 7 Amit