Rajiv Sharma, J. - (1.) HEARD learned Counsel for the opposite parties. Learned Counsel for the Petitioner submits that the Petitioner filed a regular suit No. 144 of 1998 for permanent injunction along with an application for temporary injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure. On 9.8.1999, Advocate Commissioner so appointed by the Trial Court submitted his report and map, stating therein that new construction were being made over the land in suit. The said report has been confirmed subject to evidence. On 19.5.2009, Plaintiff -Petitioner's evidence was closed and on 9.7.2009, defence evidence was started but could not be completed due to adjournment sought by the Defendants. Thereafter, on 8.9.2009, an application for amendment under Order VI, Rule 17 of the Code of Civil Procedure was filed by the Plaintiff/Petitioner, praying therein that he may be permitted to describe the land in suit by the letters started in the Commissioner's report and map of the Advocate Commissioner to give a clear description of the land in suit as provided under Order VII, Rule 3 of the Code of Civil Procedure and as required in law laid down by the Apex Court. The Civil Judge (Senior Division), Unnao, vide order dated 17.9.2009, rejected the amendment application, against which, a revision was filed before the District Judge, Unnoa, who, vide order dated 15.4.2009, also dismissed the same. Feeling aggrieved, the Petitioner has filed the instant writ petition inter alia on the grounds that the Courts below acted illegally in the exercise of their jurisdiction in refusing to permit amendment of the plaint to make it in consonance with the provision contained in Order VII, Rule 3 of the Code of Civil Procedure and to provide a clear description of the property in dispute.
(2.) PLACING reliance on Sampath Kumar v. Ayyakannu and Anr, 2002 (49) ALR 591 (SC). Pankaja and Anr. v. Yellapa (Dead) by LRS. and Ors., 2004 (56) ALR 724 (SC) : : 2004 (97) RD 451 :, 2004 (21) AIC 16. Prem Bakshi and Ors. v. Dharam Dev and Ors. : AIR 2002 SC 559 : 2002 (93) RD 104 (SC). Andhra Bank v. ABN Amro Bank N.V. and Ors. : JT 2007 (9) SC 244. Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors., 2006 (63) ALR 335 :, 2006 (40) AIC 36. Estralla Rubber v. Dass Estate (Pvt.) Ltd. : AIR 2001 SC 3295. B.K.N. Pillai v. P. Pillai and Anr., 2000 (38) ALR 338. Jai Jai Rani Manohar Lal v. National Building Material Supply, Gurgaon : AIR 1969 SC 1267. and Pasupuleti Venkateswarlu v. The Motor and General Traders : (1975) 1 SCC 770. learned Counsel for the Petitioner submitted that no doubt jurisdiction to allow or not to allow an amendment is discretionary but the same will have to be exercised in a judicious manner after evaluation of the facts and circumstances in which the amendment is sought. The Hon'ble Supreme Court as also this Court in several decisions has laid emphasis on the fact that if the granting of an amendment really serves the ultimate cause of justice and avoids further litigation, the same should be allowed. On the other hand, learned Counsel for the Respondent contended that there is neither any illegality nor infirmity in the impugned orders passed by the Trial Court 1. which has been approved by the revisional Court? Further, the amendment which has been sought by the Petitioner, if allowed, it will change the nature of the plaint, which is not permissible under law.
(3.) OBJECT of Order VI, Rule 17 of the Code of Civil Procedure is that the Court should adjudicate on the merits of the case that come before them and should consequently allow all the amendments that may be necessary for determining the real question in controversy between the parties. Order VI, Rule 17 consists of two parts. The first part is discretionary and leaves it to the Court to order amendment of pleading while the second part is imperative and enjoins the Court to allow all the amendments which are necessary for the purposes of determining the real question in controversy between the parties. It may be added that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed.;