IN THE HIGH COURT OF JHARKHAND AT RANCHI
WP (C) No. 4515 of 2008
Smt. Urmila Devi ....Petitioner.
-Versus-
1. Arun Kumar
2. Jharkhand State Housing Board .. Respondents.
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CORAM : THE HON'BLE MR. JUSTICE J.C.S. RAWAT.
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For the Petitioner(s) : M/s Rohit Roy, Rishav Dev.
For the Respondent(s) : M/s Sachin Kumar, Binod Kumar.
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4/13.11.2009
. The plaintiff-petitioner aggrieved by the order of the learned
Sub-Judge, Ranchi, in which the learned Sub-Judge has rejected the
amendment petition of the petitioner-plaintiff, filed under Order VI, Rule
17 of the Code of Civil Procedure, in which plaintiff wanted to add a
relief of damages as provided under Section 21 of the Specific Relief Act.
The learned trial court has held that the petitioner-plaintiff wanted
to amend his pleadings and the said fact was in the knowledge of the
petitioner that the damages can be claimed in alternative as provided
under the Specific Relief Act. He also held that the amendment has been
moved at a belated stage and after the commencement of the trial; the
plaintiff has not taken due diligence in moving the said amendment
application and as such, the amendment application is liable to be
dismissed.
The learned counsel for the petitioner contended that the learned
trial court has erred in rejecting the amendment application. The delay in
filing the application for the amendment of the pleading is not fatal and
no serious prejudice is shown to have caused to the defendant/Opp. Party
so to take away any accrued right and the court should take notice of the
subsequent event in order to shorten the litigation to preserve and
safeguard of both the parties. He further contended that the trial court
should have allowed the application to amend his pleading to claim in
alternative for compensation.
The learned counsel for the plaintiff-petitioner has relied upon a
decision of Full Bench of Hon’ble Madras High Court reported in
AIR 2007 Madras 78 (Hi-Sheet Industries Vs. Litelon Limited), the
learned counsel wanted to demonstrate that the delay in filing the
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application of amendment of pleading is not fatal with and no serious
prejudice is caused.
From perusal of record, it is revealed that the suit was filed before
the trial court in the year 2005 as the number of the suit is Title Suit No.
171 of 2005 and the learned counsel for the petitioner admitted that it was
filed in the year 2005 before the learned Sub-Judge, Ranchi. The
amendment application was moved before the trial court on 26.2.2008,
which is Annexure-2 to the writ application.
The objection was also filed by the defendant against the said
application. It is also undisputed that during hearing of the suit, issues
have been settled. The part evidence of the defendant has been recorded;
and it was pending for the examination of the parties. It is also revealed
from the objection that the plaintiff-petitioner has closed her case,
thereafter, the defendant respondent has been examined three witnesses in
this case and an affidavit of defendant No. 1 has also been filed. At that
stage, the petitioner has moved the said amendment application.
It is provided under Order VI, Rule 17 of the CPC that no
application for amendment shall be allowed after the trial has commenced
unless the court comes to the conclusion, inspite of due diligence, the
party could not have raise the matter before the commencement of the
Act.
The plaintiff-petitioner filed the suit for the specific performance
before the Trial Court seeking relief to execute and registered a deed of
property in favour of the plaintiff transferring the property descried in
schedule of the plaint. The plaintiff has not taken a plea in the suit or
plaint regarding the compensation of the property.
The proviso of Order VI, Rule 17 of the CPC clearly provides that
no application for amendment could be all allowed after the
commencement of trial unless the court comes to the conclusion that
inspite of due diligence the party could not have raised the matter before
the commencement of the Act. It is specifically provided under the
Specific Relief Act how a specific performance suit is to be filed and
what relief can be claimed, when the suit was filed, it was well within the
knowledge of the plaintiff-petitioner that he could have claimed an
alternative relief of compensation and damages before the court below in
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the plaint. The trial court rightly observed that the plaintiff has not
fulfilled the condition laid down in the provision and there is no averment
in the application also.
The learned counsel for the petitioner referred a Full Bench
decision in Hi Sheet Industries (SUPRA), in which, it is evident that the
Hon’ble Madras High Court, in which the matter came up before the
Bench was instituted in the Month of October’ 1990, the amendment of
C.P.C. 2002 came into force w.e.f. 1st of July, 2002 and thus Order VI
Rule 17, C.P.C. was amended by the aforesaid Amendment Act.
Therefore, the proviso of Order-VI, Rule 17 C.P.C. was not applicable in
the suit, in which, the pleading has also been instituted prior to the
commencement of the Amendment Act, so in Paragraph 18.9, the
Hon’ble Court has specifically pointed out this fact so that the matter was
considered under the proviso of the old C.P.C., in which, there was no
proviso as provided under Order VI, Rule 17 C.P.C . The Hon’ble Court
laid down the law with regard to the old provision of C.P.C. Therefore, in
view of the facts and circumstances of the case, the judgment of the
Hon’ble Madras High Court is not applicable in this case.
In this view of the matter, I am completely in agreement with the
findings recorded by the learned Sub-Judge, Ranchi and I do not find any
force in the contention of the learned counsel for the plaintiff-petitioner
and the amendment application has been rejected rightly by the trial court
keeping in view of the aim and object of the Amendment Act, 2002.
Accordingly, this petition is dismissed in limine. No order as to
costs.
(J.C.S. Rawat, J.)
Anu/-