- (1.) CHALLENGE in this writ petition is to the order dated 19.12.2011, whereby the learned Additional District Judge, Khetri dismissed the application filed by the defendants-petitioners under Order 6 Rule 17 CPC.
(2.) LEARNED counsel for the petitioners canvassed that the amendment of pleadings being procedural in nature, the same should be liberally granted. It does not put an embargo on exercise of power of appellate court. He further canvassed that if the amendment sought by the party is imperative, effective and is bonafide and not actuated with malice, the same should be allowed. The amendment sought for is not based on any of these grounds, hence in the interest of justice, amendment sought for ought to have been allowed, but the learned court below arbitrarily dismissed their application. In support of his submissions, he placed reliance on the judgment of Hon'ble Apex Court rendered in the case of Jaswant Kaur and Another Versus Subhash Paliwal and Others reported in (2010) 2 Supreme Court Cases 124. E Contra, the learned counsel appearing for the plaintiff-respondents defended the impugned order and stated the same to be just and apt. He further canvassed that the case is at the stage of recording the evidence. As per the proviso appended to Rule 17 of Order 6, after commencement of trial, no application for amendment of pleading should be allowed. In support of his submissions, he placed reliance on the judgment of Hon'ble Apex court rendered in the case of Vidyabai and others Versus Padmalatha and another reported in (2009) 2 Supreme Court Cases 409. Having heard the learned counsel for the parties and carefully perused the relevant material on record including the impugned order, it is noticed that the plaintiff-respondents filed a suit for dispossession and perpetual injunction against the defendants-petitioners. The learned trial court vide its judgment and decree dated 19.7.2008 decreed the suit of the plaintiff-respondents. Being aggrieved with the aforesaid judgment and decree, the petitioners-defendants filed an appeal. During the pendency of the appeal, the petitioners-defendants filed an application under Order 6 Rule 17 CPC seeking amendment in their pleadings. The appellate court vide its order dated 19.12.2011 dismissed the said application. Hence, the instant writ petition. In the case of Jaswant Kaur and another (supra), in para no. 27, their Lordships of Hon'ble Apex court observed that it is only at the first appellate stage, and that too, about two years after the appeal had been filed, that the two applications were made under Order 41 Rule 27 and Order 6 Rule 17 CPC for amendment of the plaint and for bringing on record the certified copy of the Will. By virtue of the said two applications, the petitioners attempted to introduce a new story by way of defence in order to prolong the disposal of the appeal. In the case of Vidyabai and others (supra), their Lordships of Hon'ble Apex Court observed that it is the prime duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.
(3.) ADVERTING to the facts of the instant case, it is noticed that the disputed compromise was entered in another suit no. 24/1985 and on the basis of that compromise, the suit was decreed on 14.3.1986. If the petitioners-defendants were aggrieved with that compromise, they could have raised the objection in that suit only. They are found not to have taken any steps for cancellation of agreement. Hence at the appellate stage, they could not be permitted to seek an amendment in the written statement of defence filed with the trial court in suit no. 105/2004. It is further noticed that proviso appended to Order 6 Rule 17 CPC puts an embargo on exercise of the power by the court. The learned trial court is found to have decreed the suit of the plaintiff-respondents and by way of application under Order 6 Rule 17 CPC filed at the appellate stage, the defendants-petitioners intended to make amendment in the written statement of defence filed with the trial court, which could not have been permitted as the suit had already been decided and no matter was pending with the trial court. The appeal was pending for hearing final arguments. If the amendment sought for is allowed, it would result into de-novo trial. The defendants-petitioners are found to have filed the applications in order to procrastinate the execution proceedings. The impugned order passed by the learned trial court is found to be just and apposite. It is found not to have suffered from any infirmity and I do not find any ground to interfere with the same. For the reasons stated above, the writ petition fails and the same being bereft of any merit deserves to be dismissed, which stands dismissed accordingly. ;