Rajasthan High Court - Jodhpur
Darshna Devi vs Ramesh Kumar & Anr on 19 December, 2016
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
S.B.CIVIL WRIT NO. 12168/ 2016
Dharshna Devi W/o Sh. BihariLal By Caste Agarwal, Aged 65
years, resident of 34-F block Ward no. 1, Shri Karanpur, district
Sriganganagar.
----Petitioner
Versus
1. Ramesh Kumar S/o Sh. Birbal Ram by caste Aggarwal,
resident of 144-A block Shri Karanpur, district,
Sriganganagar.
2. Additional district and sessions judge, Shri Karanpur,
district Sriganganagar.
----Respondent
__________________________________________
For Petitioners : Mr. Pankaj Gupta, Adv.
For Respondents : None
__________________________________________
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment 19/12/2016 Heard counsel for the petitioner. No one appears for respondents.
It is pointed out that the petitioner-plaintiff has filed an application for seeking amendment in the plaint at the stage immediately after issues were framed.
The application has been rejected on the ground that the plaintiff seeks to change the nature of the suit.
According to the petitioner the trial court has committed error.In view of the fact that the averments which the petitioner seeks to aid in the plaint are relating to the notice given by the (2 of 3 ) [CW-9442/2008] respondents by which the sale deed executed earlier has been canceled. It is submitted that the issue in this regard was also framed.
The petitioner supports his submissions by placing reliance on the law laid down by the Apex Court in AIR 2008 Supreme Court 1960 Puran ram v. Bhaguram and Anr. wherein it was held that the suit for specific performance, amendment to rectify mistake in the plaint may be allowed.
He also relies upon judgment in the case of AIR 2009 SC (Supplementary) 2671 Surender Kumar Sharma v. Makhan Singh wherein view has been taken that even in the amendment sought for is allowed, nature of suit would not change in suit for eviction. Accordingly the amendments were allowed therein.
He also relies upon judgment in AIR 2015 SC (Supplementary) 600 Mount Mary Enterprises v. M/s. Jivratna Medi Treat Pvt. Ltd. wherein the suit was under
valued and amendment was sought to be made by the plaintiff, to correct the error, such amendments sought were allowed.
Heard counsel for the petitioner. No one has put in appearance on behalf of the respondent in spite of service and mentioning in the supplementary list that the matter shall be taken up first.
The counsel for the petitioner informs that the case is listed today before the trial court for recording the evidence.
In the circumstances and considering the law of (3 of 3 ) [CW-9442/2008] hereinabove this Court deems it just and proper to allow this writ petition and the amendment which the petitioner is seeking to make in his plaint relating to adding of the facts which were not specifically mentioned in the plaint although reference are already there are allowed. The issues relating to the notice of cancellation of sale deed were already framed. In these circumstances the order passed by the trial Court is erroneous as it has not taken into consideration. The fact that adding of a prayer in the plaint would only be allowed to the plaintiff, to support his case which he has already setup in the plaint. Such amendments ought to be allowed. On technical grounds amendment in the plaint cannot be refused.
My view is fortified by the law laid down by the Apex Court citing herein above and find that the application has been wrongfully rejected.
Accordingly, the writ petition is allowed. The order dated 24.10.2016 is quashed and set aside. The amendments as prayed in para 19-A and prayer-A vide application under Order 6 Rule 17 are allowed. Amended plaint may be filed by the petitioner and the trial court may proceed. No order as to costs.
(SANJEEV PRAKASH SHARMA)J. Himanshu/-68