- (1.) VINEET Saran, J. Plaintiff-Respondent Nos. 1 to 5 filed suit No. 259 of 1995 before Civil Judge (Senior Division), Ghaziabad on 28-2-1995 praying for a decree of permanent prohibitory injunction restraining the petitioner, Nagar Palika Dadri as well as Respondent No. 6, Nagar Parishad Karmchari Mahasangh, Dadri from taking possession over the land in dispute and not to interfere in the peaceful possession of the plaintiffs over the said property.
(2.) THE dispute arose when on 5-2-1995 a foundation stone was laid by the then M. L. A. of the area inaugurating Nagar Parishad Karmchari Avas Colony over 2 Bighas of land which the plaintiffs- respondents No. 1 to 5 claim that they had purchased on 16-5-1983 from its owner Jeevan Lal, in whose favour the land was duly recorded by the order of the competent authority (Deputy Director of Consolidation) passed on 7-6-1961. An ex parte injunction order was granted in favour of the Plaintiff- respondent Nos. 1 to 5, which was thereafter confirmed on 16-5- 1995. However, against the said injunction order the petitioner, as well as Respondent No. 6 filed Misc. Appeal No. 100 of 1995 which was allowed on 6-3-1997 and the order dated 16-5-1995 was set aside. Aggrieved by the same the Respondent Nos. 1 to 5 filed writ petition No. 9567 of 1997 before this Hon'ble Court which was disposed of on 7-5-1997 with the direction that the constructions, if any, made by the petitioner and respondents No. 6 shall be at their own risk and subject to the decision of the suit. Since certain constructions had been made on the plot in dispute, the plaintiff-respondent Nos. 1 to 5 got their plaint amended and added the prayer for demolition of the constructions raised by the petitioner and respondents No. 6 and to restore the land in its original condition at the cost of the said parties. After the said amendment had been allowed, the petitioner and respondent No. 6 filed a joint written statement on 18-9-1997 in which it was claimed that the land belonged to the Land Management Committee, Dadri and thereafter vested in the petitioner, Nagar Palika Dadri and had been allotted to its employees vide resolution dated 5-12-1991. On 21-1-1998 the issue No. 7 regarding non-joinder of parties (individual members of the Association who had been allotted the plots) had been decided in favour of the plaintiffs-respondents No. 1 to 5 on the ground that the employee's association (whose members had been allotted the land), was already a party. On 13-9-2002 the hearing of suit No. 259 of 1995 was concluded and 24-9-2002 was fixed for delivery of the judgment. However, on 24-9-2002 the case was again fixed for re-hearing on certain issues. It was at this stage of re-hearing that on 13-1-2003 the petitioner filed an application under Order VI Rule 17 C. P. C. (paper No. 203 Ka) to amend the written statement and to incorporate the plea that according to the plaint allegations the Plaintiff-respondent Nos. 1 to 5 purchased the land from Jeevan Lal on the basis of the order dated 7-6-1961 passed by the Deputy Director of Consolidation, the said order dated 7-8-1961 had become void in view of the Notification dated 15-7-1980 passed by the State of U. P. by which all the consolidation proceedings were directed to be started again. The plaintiff- respondent Nos. 1 to 5 filed their objections and prayed for rejection of the application for amendment of the written statement. By order dated 10-2-2003 passed by the trial Court, the amendment application of the petitioner has been rejected. Aggrieved by the said order the petitioner has filed this writ petition. I have heard Sri Y. K. Sinha, learned Counsel for the petitioner as well as Sri Rajiv Gupta, learned Counsel appearing for the contesting respondent Nos. 1 to 5. Counter and rejoinder affidavits have been exchanged and with the consent of the learned Counsel for the parties, this writ petition is being finally disposed of at the admission stage itself.
(3.) FOR proper appraisal of this case, the provisions of Rule 17 of Order VI C. P. C. are required to be considered, which are being quoted below: " (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 purposes 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. " The contention of the learned Counsel for the petitioner is that as per the aforesaid provision, the amendment of the pleadings can be made at any stage of the proceeding. The submission is that the written statement having been filed by the petitioner in the year 1995, the proviso which has been added to the aforesaid Rule 17 by the Code of Civil Procedure (Amendment) Act, 2002 (for short the 'amending Act, 2002') would not be applicable by virtue of Section 16 (2) (b) of the Amending Act, 2002. The said Section 16 (2) (b) of the Amendment Act, 2002 which reads as under: " (b) the provisions of Rule 5, 15, 17and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;" The submission is that since the written statement of the petitioner had been filed in the year 1995 and the proviso to Rule 17 having been added by the Amendment Act, 2002 (with effect from 1-7-2002), would not be applicable in the case of the petitioner. As such it has been urged that since the pleading can be amended at any stage of the proceeding, for determining the real question in controversy between the parties, the application seeking amendment in the written statement ought to have been allowed as it goes to the root of the case and would be necessary for determining the real question in controversy in the present case.;