W.P. No.2042.11
Writ Petition No. 2042 of 2011
07/02/2011
Shri Kamal Singh Rajput, learned counsel
for the petitioners.
Heard on admission.
This plaintiffs’ writ petition under Article
227 of the Constitution of India is directed
against the order dated 25-11-2010 passed by
Second Civil Judge Class-II, Harda, in Civil Suit
No. 48-A/2010; whereby, an application under
Order 6 Rule 17 of the Code of Civil Procedure,
1908 filed by the petitioners seeking
amendment in the plaint has been rejected.
The suit is for declaration and permanent
injunction in respect of land bearing khasra No.
134/1, area 44.312 hectares, situated in villae
Bichhapur Halka No. 11/17. During the
pendency of said suit and at the stage when the
petitioners have succeeded in avoiding to
record evidence on commission for almost one
year, an application under Order 6 Rule 17 of
the Code of Civil Procedure was filed seeking
leave of the Court to amend the plaint by
incorporating the facts of pre-trial stage. The
trial Court rejected the application by the
W.P. No.2042.11
impugned order on the ground of delay and that
there was no plausible explanation by the
petitioners as to what prevented them from not
incorporating those facts which were well with
the knowledge of the petitioners.
It is this order which is being questioned
in this petition.
The question is whether the trial Court was
within its jurisdiction and justified in rejecting
the application preferred by the petitioners
seeking amendment in the plaint.
Order 6 Rule 17 of the Code of Civil
Procedure provides for :-
” 17. Amendment of pleadings.-
The Court may at any stage of
the proceedings allow either
party o alter or amend 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
question in controversy between
the parties.
Provided that no application for
amendment shall be allowed after
the trial has commenced, unless
the Court conies to the
conclusion that in spite of due
diligence, the party could not
W.P. No.2042.11have raised the matter before the
commencement of trial. “
The aforesaid provision and more
particularly the proviso came up for
consideration before the Supreme Court in the
case of Vidya Bai and others V. Padmalatha and
another: (2009) 2 SCC 409. In paragraph 10
wherein, it is observed that, the proviso to
Rule 17 is couched in a mandatory form. The
Court’s jurisdiction to allow such an
application is taken away unless the conditions
precedent therefore are satisfied viz.,it must
come to a conclusion that in spite of due
diligence the parties could not have raised the
matter before the commencement of the trial”.
It is further held in paragraph 19 that ” It is
the primal duty of the Court to decide as to
whether such an amendment is necessary to
decide the real dispute between the parties.
Only if such a condition is fulfilled, the
amendment is to be allowed. However, proviso
appended to Order 6 Rule 17 of the Code
restricts the power of the Court. It puts an
embargo on exercise of its jurisdiction. The
court’s jurisdiction in a case of this nature is
W.P. No.2042.11
limited. Thus, unless the jurisdictional facts, as
envisaged therein, is found to be existing, the
Court will have no jurisdiction at all to allow
the amendment of the plaint”.
In the case at hand the petitioners have
failed to demonstrate that despite of due
diligence the facts they proposed to incorporate
by way of amendment, were not within their
knowledge when the suit was filed or even
when the issues were framed and an order was
passed for examining the witness on
commission.
In view whereof the trial Court in our
considered opinion was well within its right in
rejecting the application preferred by the
petitioners seeking amendment in the plaint.
Furthermore, since the scope of
interference in writ jurisdiction under Article
227 of the Constitution of India is confined to
the extent that subordinate courts remain
within their bounds of authority (please see
Waryam Singh V. Amarnath: AIR 1954 SC 215 &
Shalini Shyam Shetty And Another V. Rajendera
Shankar Patil : (2010) 8 SCC 329); and in the instant
case since the trial Court was within its jurisdiction in
W.P. No.2042.11
rejecting the application as the same being not in
consonance with the provisions of Order 6 Rule 17 of
the CPC, we are not inclined to interfere with the
impugned order.
In the result petition fails and is hereby
dismissed. No costs.
(AJIT SINGH) (SANJAY YADAV)
JUDGE JUDGE
SC