Uttarakhand High Court
Shyam Sunder vs Branch Manager Nainital Bank Ltd And ... on 30 May, 2017
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 67 (M/S) of 2013
Shyam Sunder ..... Plaintiff/Petitioner
versus
Branch Manager, Nainital Bank Ltd.
and another ..... Defendants/Respondents
Mr. S.K. Mandal, Advocate for the petitioner.
Mr. Anil Kumar Joshi, Advocate for the respondents.
U.C. Dhyani, J. (Oral)
By means of present writ petition, the petitioner seeks writ in the nature of certiorari quashing the impugned order dated 20.08.2011, passed by I Addl. Civil Judge (Jr. Div.), Udham Singh Nagar and order dated 23.11.2012, passed by District Judge, Udham Singh Nagar at Rudrapur, in civil revision no. 37 of 2011 and dismiss the application of the defendants under Order VI Rule 17 C.P.C.
2) Plaintiff-petitioner filed a civil suit against the defendants-respondents in the court of Civil Judge (Jr. Div.), Rudrapur, District Udham Singh Nagar. Written statement was filed by the defendants- respondents. Issues were settled. Final hearing was yet to commence. In the meanwhile, defendants moved an application under Order VI Rule 17 C.P.C. for amendment in the written statement. Para (3) of said 2 application is reproduced here-in-below for convenience:
"That if the Hon'ble court permits, then by way of an amendment certain lines - 'It is an admitted fact that the plaintiff was a daily wager in the Kichha Branch Office of the Nainital Bank Limited, defendant no. 1 and such the plaintiff has no locus standi to file the abovenoted suit before the civil court and should present his matter before the proper forum of Labour Court for his grievances' are essential to be incorporated for proper adjudication of the matter."
3) Such application was allowed by learned trial court. Civil revision was filed against the same, which was dismissed by learned District judge, Udham Singh Nagar vide order dated 23.11.2012. Aggrieved against the same, present writ petition has been filed by the plaintiff-petitioner.
4) Order VI Rule 17 C.P.C. reads as under:
"17. Amendment of Pleadings.- The Court may at any stage of the proceedings allow either party to 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 questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
5) Learned counsel for the plaintiff-petitioner submitted that it is the civil court and not the Labour 3 Court, who has jurisdiction to decide the suit of the plaintiff and, therefore, amendment should not have been allowed by both the courts below.
6) It is settled law that the merits of the amendments sought for by any party are not to be considered at the time of allowing or rejecting the amendment application. It is left open to be decided by the trial court after framing issues in this regard, as to whether civil court has jurisdiction to try the suit, or not?
7) The facts brought on record will reveal that the defendants-respondents have been able to show that the defendants, in spite of due diligence, could not have raised the legal plea, thus raised, before the commencement of trial. It is only in the form of ouster of jurisdiction of civil court, and nothing else. Final hearing is yet to commence and, therefore, this Court is of the opinion that the matter has been appropriately dealt with by the trial court as well as by the revisional court giving cogent reasons in support of their respective judgments.
8) In the above noted set of facts, there is no infirmity in the orders impugned. This Court is unable to take a view contrary to what was taken by the courts below.
49) Writ petition, therefore, fails and is dismissed.
10) On the request of learned counsel for the petitioner, it is directed that an effort shall be made by the trial court to decide the original suit no. 129 of 2007, at an early date, in accordance with law, without granting unnecessary adjournments to either of the parties.
(U.C. Dhyani, J.) Dt. May 30, 2017 Negi 5