Writ petition challenging dismissal of application for amendment of plaint under Order VI Rule 17 CPC at appellate stage. Court dismissed petition, holding amendment not permissible as suit was dismissed for lack of substance and plea of adverse possession was available but not taken earlier.
Petition dismissed; stay application also dismissed.
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SB CI VI L WRI T PETI TI ON NO. 8352/ 14. 1
I N THE HI GH COURT OF JUDI CATURE FOR RAJASTHAN BENCH AT JAI PUR
SB CI VI L WRI T PETI TI ON NO. 8352/ 14.
Raj endr a Kumar & Or s. – Pet i t i oner s. Vs. Ashok Kumar & Or s. - Respondent s. DATE OF ORDER: 7th May, 2015. PRESENT HON' BLE MS. JUSTI CE BELA M. TRI VEDI
SB CI VI L WRI T PETI TI ON NO. 8352/ 14. 2
cour t whi ch i s pendi ng. Dur i ng t he pendency of t he sai d appeal , t he pet i t i oner s had f i l ed t he appl i cat i on seeki ng amendment i n t he pl ai nt under Or der VI Rul e 17 of CPC f or i ncor por at i ng t he par a No. 3( a) and 7( cha) t o t he ef f ect t hat t he pet i t i oner s had become t he owner s of t he pr oper t y i n quest i on by adver se possessi on, however had i nadver t ent l y not ment i oned t he sai d f act s i n t he pl ai nt . The sai d appl i cat i on has been di smi ssed by t he appel l at e cour t vi de t he i mpugned or der dat ed 10. 4. 14, agai nst whi ch t he pr esent pet i t i on has been f i l ed.
SB CI VI L WRI T PETI TI ON NO. 8352/ 14. 3
by adver se possessi on, was t aken i n t he sai d sui t t hough avai l abl e. I t appear s t hat t he i ssue wi t h r egar d t o t he owner shi p of t he pr oper t y i n quest i on was al so f r amed i n t he sui t , but t he same was not deci ded i n f avour of t he pet i t i oner s- pl ai nt i f f s. Hence, no such amendment at t he appel l at e st age, as pr ayed f or by t he pet i t i oner s, coul d be gr ant ed. Ther e bei ng no i l l egal i t y or i nf i r mi t y i n t he i mpugned or der passed by t he appel l at e cour t , t he pr esent pet i t i on deser ves t o be di smi ssed and i s accor di ngl y di smi ssed. By t hi s or der , t he st ay appl i cat i on al so st ands di smi ssed.
( BELA M. TRI VEDI ) J.
MRG
Al l cor r ect i ons made i n t he j udgment / or der have been i ncor por at ed i n t he j udgment / or der bei ng emai l ed. MRG/ PS
2 issues framed by the court
Whether an application for amendment of plaint under Order VI Rule 17 CPC can be allowed at the appellate stage when the suit itself was dismissed for not finding substance.
Whether a plea of ownership by adverse possession, which was available but not taken in the dismissed suit, can be incorporated via amendment at the appellate stage.
1 provisions across 1 enactments
Rajnendra Kumar & Ors.
Ashok Kumar & Ors.
J. BELA M. TRI VEDI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
