- (1.) The petitioner by way of this writ petition assails the order dated 10.01.2008 passed by the Civil Judge (Jr. Division) & Judicial Magistrate, Ist Class, Ajmer City (East), Ajmer whereby the application moved by her under Order 6 Rule 17 readwith Section 151 CPC was rejected.
(2.) Learned Counsel for the petitioner submits that the petitioner is the defendant in the suit filed. An application seeking amendment in the counter claim filed by her earlier on the ground that during the pendency of the civil suit a patta has been issued by the UIT in favour of the plaintiff which is resulted in seeking declaration in the counter claim as against the respondent- plaintiff. The registration of the patta was challenged by the defendant-petitioner before the Divisional Commissioner, Ajmer who had rejected his appeal on the ground that the issue cannot be decided by the Divisional Commissioner, Ajmer and the same has to be decided by the Civil Judge and thereafter, an application was moved for seeking amendment which has been rejected wrongfully treating the prayer to be beyond limitation. Learned Counsel submits that at the stage of examining application under Order 6 Rule 17 CPC question regarding the amended relief claimed being beyond limitation cannot be decided at this stage and it has to be independently examined by framing a separate issue in relation thereto.
(3.) Per contra, learned Counsel appearing for the respondent No.3 submits that the fact of the patta having been registered on 12.03.2003 came to the knowledge of the petitioner on 27.06.2003 i.e. on the day when the appeal was preferred before the Divisional Commissioner and decreetal suit has to be filed within three years. The period counted from 27.06.2003 i.e. from the date of knowledge is calculated, it is apparent that three years period has elapsed and the application moved under Order 6 Rule 17 is beyond limitation. Learned Counsel further submitted that the concerned patta could be challenged only under the Land Revenue Act, and under Section 259 thereto the jurisdiction of the civil Court is barred. Therefore, the application for seeking declaration relating to the patta if allowed would be without jurisdiction. Learned Counsel further submits that such aspect could have been considered by the Court at the stage deciding application under Order 6 Rule 17 CPC as a prima facie case has to be seen by the concerned Court at the said stage. It is his further submission that the order passed by the Divisional Commissioner has also been challenged by the petitioner before the Board of Revenue.;