Jharkhand High Court
Smt. Urmila Devi vs Arun Kumar & Anr on 13 November, 2009
Author: J.C.S. Rawat
Bench: J.C.S. Rawat
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 -2- 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 -3- 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/-