W.P. No.5872/2010
29.6.2010
Shri Devendra Shukla, learned counsel for the petitioners.
Shri S. Bhattacharya, learned counsel for the respondent/
plaintiff.
This petition is directed against an order dated 1/4/2010
passed by 1st Civil Judge Class-I, Laudi, Distt. Chhatarpur by which
an application filed by the petitioners under Order 6 Rule 17, CPC by
way of consequential amendment was rejected.
2. Learned counsel for the petitioners submitted that the
amendment sought by the petitioners was substantial but the trial
erred in rejecting the application.
3. Learned counsel for the respondent/plaintiff has supported the
impugned order and has submitted that the aforesaid consequential
amendment, as prayed by the petitioners, was not made within the
time limit. The amendment sought by the plaintiff was allowed by the
trial Court long back on 9/3/2006, therefore, the trial court rightly
rejected the aforesaid application of the petitioners.
4. From the perusal of the amendment application and the
impugned order, we find that the proposed amendment as contained
in para-21(l) in the application dated 2/2/2010 by the petitioners was
necessary for the just decision of the case. But the trial Court erred
in rejecting the application so far as it relates disallowing the
proposed amendment as prayed in para-21(l) in the written
statement. To appreciate the aforesaid, we perused the record and
also copy of the plaint provided by learned counsel for the petitioners
and we find that though the suit was filed by the plaintiff seeking
declaration that the plaintiff is the Bhumiswaqmi, is in possession of
the land, a further declaration that the plaintiff is entitled for specific
performance of the contract from defendants 1 and 2 and defendants
1 and 2 be directed to register the sale deed dated 5/6/2000. The
suit is based on the document dated 5/6/2000 alleged by the plaintiff
as a sale deed. Initially in the plaint the plaintiff sought the aforesaid
relief but no relief specifically was prayed by the plaintiff for grant of
decree of specific performance in his favour. However, an
amendment was incorporated by the plaintiff in the plaint claiming
specific performance of the contract and the suit was valued and the
Court fee was paid. This part of the amendment incorporated by the
plaintiff subsequently was challenged by the defendants by filing this
application for amendment in the written statement in which in para
21(l) such amendment was prayed for by the defendant.
5. From perusal of the aforesaid facts, it is apparent that the
proposed amendment, as prayed in para- 21(l) in the written
statement by the petitioners in the application dated 2/2/2010 was
necessary for just decision of the case but the trial Court without
considering this aspect erred in rejecting the entire application.
6. In view of above, this petition is allowed in part. The
amendment as prayed in para-21(l) in the written statement is
allowed. The petitioners herein are permitted to incorporate such
amendment in the written statement, rest application filed by the
petitioners is rejected and in that regard the order passed by the trial
Court is upheld. The trial Court shall permit the petitioners to
incorporate such amendment within a period of 15 days and then
proceed with the trial.
7. The petitioner shall be entitled for cost of this petition from the
respondent/plaintiff. Counsel fee Rs.500/-.
(Krishn Kumar Lahoti) (J.K. Maheshwari)
Judge Judge
ts