$§mg§@ Bam§1 IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION {227} No. 6 g2O/2008 PETITIONER 1 . @m giisdaf Smt. Kumudani Bai , aged about 70 years, W/oJagdish Agrawal, by occupation House wife Jagdish Agrawal S/o Dwarika Prasad Agrawal aged about 80 years, by ”F occupation Agriculture {6mm dud}. Sunita D/o Jagdish Agrawal aged about 43 years, Gyaneshwar Agrawal S / o Jagdish Agrawal aged about 50 years, by occupation B.S. Karmi Vinit Agrawal S/o Jagdish Agrawal aged about 46 years, Tarkeshwar Agrawal S/o Jagdish Agrawal aged about 54 years, A11 are R/o Baniyapara, Devkar Tah Saja, Distt. Durg (C.G.) RESPONDENTS 1. PWRH¢ VERSUS Smt. Nirmla Bai Dani W/o Shari Virendra Dani, Aged about 63 year, by occupation House wife R/o Rest House Road , Bemetera, Tah Bemetra, Distt. Durg (C.G.) through, Shree Ashish'Dani S/o Dr: Virendra Dani aged about 35 years, Power of Attorney Rest House Road , Bemetra, Tah Bemetra, Distt. Durg (C.G.) The State of Chhattisgarh, Through Collector, Distt. Durg (C.G.)‘ WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA @> g K HIGH COURT OF CHHATTISGA‘RH AT BILASPUR Single Bench Hon ble S f Writ Petton (227) No.6820 of 2008 S‘mt. Kumudani Bai and others versus 'Smt. Nirmla Bai Dani and anothr ORDER Post for 5-1 0—201 0 Sdl— Prashant Kumar Mishra Judge hr ii e Petitioners . Smt. Nirmia Ba' Present: , another Shri petitioners. Shri P.P.S Parag h Kotecha and Shn‘ Sameer , counsel for the e étate/resp Wat, Panel for respondent Lawyer for No.1 th ondent No.2. W. .. : I 'l § 2 defendant No.1 being two daughters bf Narsingh Agrawal, she is entitled for 1/2 share in the suit property. The defendants have stated in their written statement that Padmavati wife of Narsingh Agrawai has executed saie—deed with respect to the properties in the years 1992, 1995, 1996 andthat Padmavati has also executed a Will in favour of the defendants for the remaining properties, therefore, the plaintiff is not entitled to any relief. .3. When the plaintiff’s evidence was completed, the subject applications were moved for amending the pla‘int to include another schedule in the plaint and claiming 1/2 share in those properties also. it was also proposed to be pleaded that the defendants have presented a Will executed by Padmavati before the Naib-Tahsildar, Dhamdha to which the plaintiff has raised objection and her. application was rejected on 6-10-2003, however, the Sub-Divisional Officer allowed the appeal on 16-8-2004. lt was also stated that the plaintiff is entitled to damages and that the amendment is necessary because the defendants are claiming title on the basis of the Will. ln the amendment application, the amendments have been proposed in paragraphs 3, 7A, 9, 10A, 10B, 10C, 11A, 12, 13, 16A, 16B, 16C and 16D and a new schedule C. 4. The defendants objected to the said application on submission inter a/ia that the application has been submitted after closure of plintiffs evidence and when the mater was fixed for recording of statements of defendants’ witnesses. Thus, the same is highly elated and that the nature of suit is changed b_y the amendment. a j b 5. The trial Court has allowed the‘applic‘ation. Hence, the defendants have preferred the instant writ petition. 6. Learned counsel for the petitioners/defendants has argued that the amendment cannot be allowed after commencement of trial unless the party claiming the amendment satisfies the Court that in spite of due diligence the amended pleadings could not have been raised before commencement of trial. 7. Learned counsel for the respondent No.1/plaintiff has argued that the amendment is necessary to include all the properties belonging to late Narsingh Agrawal and the same is bona fide. Learned counsel would also argue that the defendants have made consequential amendment, therefore, the writ petition deserves to be dismissed. Learned counsel has relied on the judgment of the Hon’ble Supreme Court in the matter of Revajeetu Builders and Developers vs. Narayanaswamy and [Sons and others, (2009) 10 SCC 84, Surender Kumar Sharma vs. Makhan Singh, (2009) 10 SCC 626 and state of Maharashtra vs. Hindustan Construction Company Limited, (2010) 4 SCC 518. 8. The present suit has been preferred on 9—7-2004, therefore, the amended provision contained in Order 6 Rule 17 of the Code would be applicable in the present case. In the said amendment, a proviso has been inserted in Rule 17 of'Order 6 of the Code making a provision that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion l/x/ l that in spite of due diligence, the party could>not have raised the \ , l matter before the commencement of triak in the matter of Vidyabai and others vs. Padmalatha and another, (2009) 2 SCC 409, the Hon’ble Supreme Court has considered the effect of the proviso and has held in paragraph 19 of the report that the proviso appended to Order 6 Ruie 17 of the Code restricts the power of the Court and puts an embargo on exercise of its jurisdiction. It is further held therein that the Court’s jurisdiction, in a case of this nature, is Iimited and unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint. ;w.v 6W 9. To examine as to whether the plaintiff/respondent No.1 has successfully satisfied the condition imposed in the proviso inviting the Court to exercise the jurisdiction, the averments made in the _ application under Order 6 Rule 17 of the Code needs to be perused. In this application (Annexure P-2), the plaintiff has mentioned in paragraph 3 thereof that the defendants have produced copy of the Will in the revenue Court, therefore, it has become necessary to raise the proposed amendment. lt is to be seen that the plaintiff has also raised a pleading that she objected to the defendants’ application for mutation before the Naib-Tahsildar which was decided on 6-10-2003. The suit has been filed on 9—7-2004. Thus, on the date of tiling of the suit, the plaintiff was aware of the Will executed by Padmavati in favour Of the defendants and yet pleadings were not made in this regard when the suit was filed. Even otherwise, there is no mention in the amendment application ‘that in spite of due diligence, the plaintiff could not have raised the 5 pleadings now proposed to be brought by way of amendment before the commencement of trial, in spite of due diligence. Thus, the plaintiff has failed to satisfy the jurisdictional embargo made in the proviso to Rule 17 of Order 6 of the Code. 10. The trial Court has also not discussed anything in the impugned order as to how the amendment can be allowed in view of the proviso to Rule 17 of Order 6 of the Code, though admittedly plaintiff’s evidence is already closed and the matter was fixed for recording the defendants’ evidence. 11. The judgments relied by the respondent Not/plaintiff have not dealt with the effect of the proviso appended to Rule 17 of Order 6 of the Code. Thus, the judgments relied by the respondent Not/plaintiff are not applicable in the present case. 12. ln view of the above, it is found that while allowing the amendment application and the application for taking the documents on record concerning the amendment, the trial Court has committed an error of jurisdiction by ignoring the proviso to Rule 17 of Order 6 of the Code. The order thus needs to be interfered with in exercise of the power under Article 227 of the Constitution of lndia. The 13. Consequently, the instant writ petition is allowed. impugned order dated 8-9-2008 (Annexure P—4) is set aside. Sd/— Prashant Kumar Mishra ,. Judge Gupal