PUSHPENDRA SINGH BHATI, J. - (1.) The petitioner by way of filing this writ petition is claiming for the following reliefs:- "(i) by an appropriate writ, order or direction, the impugned order dated 06.10.2016 (Annex.11) passed by the learned Civil Judge, District Jodhpur in Civil Appeal (Decree) No.42/2015 (Shrikishan v. Smt. Saroj Saini) may kindly be set aside and consequence thereof the application under Order 6 Rule 17 CPC filed by the plaintiff-respondents may kindly be rejected with costs. (ii) Any other appropriate writ, order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner."
(2.) The facts as noticed by this Court are that the respondent-plaintiffs filed a suit for permanent injunction (prohibitory injunction) against the petitioner-defendant and claimed additional relief pertaining to possession of the premises in-question. The plaintiffs and defendant are brother and sisters and the plaintiff claimed in his plaint that the disputed plot no.168 was given on licence to Smt. Kishanpyari on 29.4.1982 by the UIT and Smt. Kishanpyari sold the said property to Smt. Suraj Kanwar W/o. Shri Manohar Lal, who was mother of plaintiffs and the defendant on 22.4.1985 by a written agreement to sell on certain conditions. All the consideration payable under the transaction was paid at the same time. Smt. Suraj Kanwar expired in the year 1992. The defendant-petitioner was in joint possession with Smt. Suraj Kanwar in the said property since 1991 and after death of Suraj Kanwar, the petitioner claims to have exclusive possession till date and has also made construction of house. The respondent-plaintiff are alleged to have got a registered sale-deed subsequent to the earlier litigation, which was decided in favour of petitioner, which is said to have happened on 16.6.2006. The defendant-petitioner filed a written statement in the plaint and submitted that the sale-deed dated 16.6.2006 was an eye-wash and is bad in the eye of law. The learned court below after hearing both the parties dismissed the suit while passing a decree on 07.10.2015. While the suit was pending, the plaintiff-respondent filed an application under Order 6 Rule 17 CPC for amendment and the same was dismissed by the learned court below before passing of decree. The respondent-plaintiff while filing appeal against the decree dated 07.10.2015 sought relief against the order of rejection of application under Order 6 Rule 17 CPC and alongwith the appeal wanted adjudication by the appellate court regarding amendment sought by the plaintiffrespondent. The respondent thereafter again moved fresh application under Order 6 Rule 17 CPC before the learned appellate court and prayed to seek such amendment earlier which has been allowed by the learned appellate court vide order dated 06.10.2016.
(3.) Shri Sajjan Singh, learned counsel for the petitioner, submits that the application under order 6 Rule 17 CPC was maintainable and if at all the issue of amendment sought by the respondents was to be decided, then the same could have been decided in the appeal itself wherein specific averments were made by the respondents. Counsel for the petitioner also pointed out that the original order passed by learned trial court before the decree at the first instance of rejection of the application under Order 6 Rule 17 CPC has been considered by the appellate court while allowing the application under Order 1 Rule 10 CPC. Counsel for the petitioner further submitted that the respondents could have demanded decision on the issue of Order 6 Rule 17 CPC only at the time of final adjudication of the appeal. Counsel for the petitioner relied upon the judgment of this Court in Satya Narayan v. Addl. Civil Judge (Jr.Dn.) No.1, Bikaner, reported in 2008(3) DNJ (Raj.) 1497; the relevant para whereof reads as under:- "4. The learned counsel for the petitioner defendant submits that the prayer for possession cannot be allowed to be added at such a belated stage where the suit was filed way back in 1985 and the same was at the final stage of arguments. The present application was filed by the plaintiff and has been allowed by the learned trial court albeit wrongly. Learned counsel for the petitioner relies upon the decision of the Hon'ble Supreme Court in Bharat Karsondas Thakkar v. M/s. Kiran Construction Co. and Ors. - 2008 AIR SCW 3192 wherein the Hon'ble Supreme Court reiterating the well settled principles held that if the character of the suit is likely to be substantially changed, the amendment cannot be allowed particularly at the belated stage. The proviso added to Order 6 Rule 17 C.P.C. w.e.f. 1.7.2002 is also to the same effect and, therefore, the amendment at the final stage of the suit cannot be liberally allowed. The present amendment seeking to add the prayer for possession is likely to change the character of the suit because it is basically beyond the frame of the original suit and the prayer made therein.";