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MOHAN LAL versus PRAKASH CHANDRA

High Court of Judicature at Allahabad

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Mohan Lal v. Prakash Chandra - WRIT - C No. 7221 of 2006 [2006] RD-AH 2828 (7 February 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 23

Civil Misc. Writ Petition No. 7221 of 2006

Mohan Lal Vs. Prakash Chandra

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the petitioner.

This petition under Article 226 of Constitution of India has been brought challenging the order of revisional court dated 17.01.2006 whereby the order of the trial court rejecting the amendment application under Order VI, Rule 17 C.P.C. has been set aside.

Learned counsel for the petitioner contends that the trial court had rightly rejected the aforesaid amendment application moved by the respondent plaintiff as the property in suit by the proposed amendment is being extended also over the land, which is exclusive property of the defendant petitioner. It is further contended that the revisional court has not taken into consideration the amendment incorporated in the Code of Civil Procedure under Order VI, Rule 17, whereby certain restrictions have been imposed for permitting such amendment in the pleadings of parties. Learned counsel further submits that the revisional court has not considered the order of the trial court in a right perspective.

A perusal of the amendment application shows that the plaintiff has come with an initial plea that the property in question was a joint family property, which was subjected to family settlement during which the plaintiff got it in his share and the defendant being from the same family is trying to disturb his possession. It is in these circumstances that the suit for permanent injunction has been filed. By the proposed amendment the property in suit over which the permanent injunction has been sought, remains the same as the land shown by red colour in the plaint map. The relief claimed relates to only that land and there is no amendment extending that land from what it has been shown in such map appended to the plaint. There is also proposal of addition of certain parties as proforma defendants. They are persons of the same family and since the plaintiff has come with a plea of family settlement, these persons, who are from the same family, in some or the other way appear to be proper parties and if the prayer is for their addition as proforma defendants, there cannot be any objection to it. As regards the proposed amendment in the Code of Civil Procedure incorporated by Amending Act, 2002, it is true that the restrictions have been placed upon permitting such amendment which in the opinion of the court if found that in-spite of due diligence party seeking amendment could have raised the matter before commencement of the trial. Here learned counsel states that the trial has commenced and this application has been moved thereafter only. But from the aforesaid discussion, it is evident that the amendment has been proposed only by way of extension of the case already taken by the plaintiff and it cannot be said that by application of due diligence such proposed pleadings could have been earlier incorporated in the plaint before commencement of the trial. In any case if the revisional court has observed in the impugned judgment holding that the amendment incorporated by the Amendment Act, 2002, is not applicable in the present case, the said order on that score only cannot be disturbed in the present petition. Otherwise also the amendments sought to be incorporated are not such, which come within the purview of added proviso to Order VI, Rule 17 C.P.C. and as such, it should have been reasonably permitted by the trial court only and which has now been done by the revisional court. The order impugned thus, does not appear to have any legal or procedural flaw calling for interference in the present petition.

The writ petition having no force is hereby dismissed.

07.02.2006

gp/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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