A 2-^ ^ ^ \^ lA I/ \*-1-< .w^ ^^^^ ^y/h^01^ s^^" /'• 'l ,^1'.'" . ^ .. ' ' AMENDEDPETITION MeJlJL^-^ A' THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION fU/A 227) N0.4875 OF 2009 PETITIONER Santram, s/o. Shri Beniram Sahu, Aged.. about-36 years, OccupatiQn - Agriculturist, r/o. Village - Baldeopur, Thana and Tahsil - Khairagarh, Distt. Rajnandgaon (C.G.). VERSUS RESPONDENTS .^f^ ^A l^"" ^^L^^' ^ CEWEO-'; ^BIIASP^ ^\/A\^ -^ 1. Sukdev, S/o. Umendi Sahu, Aged bout 50 years. 2(a) Bishantin Bai, age 55 years, W/o. Maya Ram' Sahu, • R/o. Baldevpur, Thana Khairagarh. 2(b) Tirith Kunwar Bai, age 50 years, W/o. Mangi Lal Sahu, R/o. Jurla Kala, Tahsil Khairagarh. 2(c) Sukhbati Bai,age 45 years, W/o. Shiv Lal Sahu, R/o. Mudipar, Tahsil Khairagarh. 3. Beniram, S/o. Umendi Sahu, aged about 64 years. 4. Han^ram, S/o. Umendi Sahu, aged about 36 years. Occupation of All Agriculturist, R/o. Village - Baldeopur, Tfiana and Tahsil Khairagarh, Distt. Rajnandgaon(C.G.). 5. Gyanchand, S/o. Late Surajmal Jain, aged about 54 years, R/o. Hiramoti Line, Rajnandgaon, Distt. Rajnandgaon (C:G.) 6. State of Chhattisgarh, Through Collector, Rajnandgaon, District of Rajnandgaon (C.G.). WRIT PETITION UNDER ARTICLE227 OF THE CONSTITUTION OF INDIA S'"-'':f~W':;^-SfE's:.' ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinaie Bench: Hon'bte Shri Justice Prashant Kumar Mishra WritPetitionf2271No. 4875/2009 PETLT!QNER Versus RESPONDENT Sukdev and others. Shri Vinay Pandey, counsel for the petitioner. Shri Anand Kesharwani, counsel for the respondent No.1. Shri Sanjeev Agrawal, Panet Lawyer for the State/respondent No.6. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDiA ORAL RDER (15.12.2010) The petitioner/defendant has preferred this petition under Article 227 of the Constitution of India challenging the order passed by the trial Court rejecting his application under Order 6 Rule 17 of C.P.C. (2) Ptaintiffs Sukdev has preferred the suit for declaration and permanent injunction on 30/12/2005. The present defendanVpetitioner has already filed his written statement and the trial Court, after framing all issues, has fixed the case for recording evidence. When the matter was thus posted for recording evidence, the petitioner moved the subject application under Order 6 Rule 17 ofC.P.C. seeking leave to amend the written statement, The said application has been rejected by the trial Court on the ground that ttie subject matter of amendment was within the knowledge of the defendant, therefore such amendment cannot be allowed after framing of issues. -(3) Shri Vinay Pandey, learned counse! for the petitloner would submit that the amendment is necessitated because of the plaintiffs pleading made in the plaint after his prayer for amending the plaint was altowed and thus the ,bar under the proviso to Rule 17 of Order 6 of C.P.C. would not be attracted. l""'^'-'S®'l'^.^.ns?» I9' -^ (4) On the other hand Shri Anand Kesharwanl, learned counsel appearing for respondent No.1 would submit that the trial Court has not committed any illegality while rejecting the petitioner's application for amending the written statement. (5) On perusal of the application under Order 6 Rule 17 of C.P.C. it would appear that the petitioner has not stated anything therein that the amendment is necessitated on account of the allowance of plaintiff's prayer for amending the pfaint. Instead, rt is the statement made in the application that the amended pleading is required because the petitioner has obtained some documents after framing of the issues. Thus, it woutd appear that the requirement of law as contained in the proviso to Rule 17 of Order 6 of C.P.C. has not even been stated in the application. Therefore, it wouid be treated that the plaintiff was aware of the facts at the time of filing of written statement. (6) In the matter of Vl<fyabai and others vs. Patfmafatha and another reported jn (2009) 2 SCC 409.. the Hon'ble Supreme Court has held that prayer for amendment in the pleading is not to be allowed when the parties seeking leave to amend has failed to cross the legal hurdte as contempiated in the proviso to Rule 17 of Order 6 of C.P.C. with regard to the questi'on as to when the trial in the suit would commence, the Hon'bte Supreme Court has held therein that the trial would commence on the date when afRdavit of the witnesses under Order 18 Ruie 4 of C.P.C. are exchanged. Learned counsel appearing for both the parties have stated that on the date when the subject application under Order 6 Rule 17 of C.P.C. preferred, affidavits of the plaintiffs witnesses under Order 18 Rule 4 of C.P.C. were already -c^ i 1 1"^^3^^ ^ i.. y/ \^y!»^!-_/- •-?°'-w>-:-"£y' 7'lf •3 exchanged. Thus, when the subject application was moved, the trial had already commenced. (7) In view of the above and particularly in view of the fact that the petitioner/defendant has not been able to satisfy this Court so as to bring his case outside the purview ofthe tegal hurdle made in the proviso t6 Rule 17 of Order 6 of C.P.C., the leamed trial Court has not committed any illegality or any error of jurisdiction while rejecting the petitioner's application under Order6Rule17ofC.P.C. (8) Consequently, the instant petition under Article 227 of the Constitution of India fails and is hereby dismissed. —--—— — Sd/- Prashant Kumar Mishra Judge ^