Allowed

Gopaldutt Mishra and Ors. v. Anand Singh and Anr.

Rajasthan HC6 Sept 2022WMAP/379/2014

Case brief

AI extract

What is this about?

High Court allowed a misc. application seeking permission to amend plaint under CPC, clarifying an earlier inadvertent error. Court held amendment was necessary to describe property, delay was understandable due to stay, and no prejudice would be caused to respondents.

What did the court decide?

Petitioners to pay Rs.25,000 cost to respondents before amendment in plaint is allowed.

Gopaldutt Mishra and Ors. Vs Anand Singh and Anr. — Property and Title | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Writ Miscellaneous Application No.379/2014

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S.B. Civil Writ Petition No.3062/2014

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Gopaldutt Mishra Son of Late Shri Kantidutt Mishra,

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Mukeshdutt Sharma son of Late Shri Kantidutt Mishra,

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Manojdutt Mishra son of Late Shri Kantidutt Mishra,

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All residents of House No.1494/28, Naya Ward 214/24, Gopalganj, Nagra, Ajmer.

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----Petitioners-Plaintiffs

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Versus

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Anand Singh S/o Late Sh. Dayal,

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Laxminarayan S/o Late Sh. Dayal,

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Both resident of Ashok Nagar, Bhatta Nagra, Balupura Road, Ajmer.

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----Defendants-Respondents

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For Petitioner(s) : Mr.Alok Chaturvedi, Adv. For Respondent(s) : Mr.R.M. Jain, Adv.

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HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

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Order

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06/09/2022

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This case has checkered history.

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The petitioners-plaintiffs filed S.B. Civil Writ Petition No.3062/2014 before this Court challenging the order dated 28.01.2014, whereby application filed by the petitioners under Order 6 Rule 17 CPC read with Section 151 CPC, was dismissed.

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The Civil Court on account of issues being framed in the suit and evidence of the plaintiffs being recorded and considering the fact of dismissal of stay petition by the High Court, found that

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(2 of 9)

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[WMAP-379/2014]

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the petitioners did not exercise their due diligence in seeking amendment of their pleadings and as such amendment application came to be dismissed.

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The writ petition of the petitioners was decided finally by a Coordinate Bench of this Court on 27.11.2014 and while writing the order, this Court found that in the interest of justice, documents sought to be placed on record were allowed to be taken on record subject to payment of cost of Rs.2,000/- to the respondents-defendants.

¶26

The petitioners immediately filed the present Misc. Application No.379/2014 for seeking correction/modification in the order dated 27.11.2014. The Coordinate Bench of this Court after hearing counsel for both the parties, modified the order and disposed of the writ petition by directing the petitioners to pay cost of Rs.2,000/- to the respondents-defendants and the amendment application filed by the petitioners under Order 6 Rule 17 CPC was allowed and amended plaint incorporating amendment was to be taken on record by the Trial Court and as such, Misc. Application No.391/2014 was disposed of.

¶27

The respondents-defendants filed Review Petition No.3/2015 in S.B. Civil Misc. Application No.379/2014 for seeking recalling of the order dated 28.11.2014, passed by this Court correcting the order dated 27.11.2014. This Court while hearing the matter recorded a finding that order dated 28.11.2014, was passed by the Court without giving any opportunity of hearing to counsel for the respondents and as such, the order dated 28.11.2014 was set aside and Misc. Application No.379/2014 filed by the petitioners was ordered to be heard on merits and at the

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(3 of 9) [WMAP-379/2014]

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joint request of the learned counsel for the parties, the proceedings before the Trial Court were stayed.

¶30

This Court finds that there was yet another S.B. Writ Misc. Application No.74/2019 was filed for recalling the order dated 14.01.2016 passed by this Court and prayer of the respondents to recall said order was rejected.

¶31

This Court at this juncture would like to express that filing of such continuous misc. applications and recalling application needs to be discouraged due to frivolous litigation initiated by the parties and as such, the litigants/parties do not seem to be pursuing their remedy for seeking justice in proper Courts and on one pretext or another, this Court is burdened with frivolous application. The resultant position remains to decide misc. application No.379/2014 filed by the petitioners for recalling the order dated 27.11.2014.

¶32

Learned counsel submitted that once this Court had allowed the writ petition filed by the petitioners and permitted amendment as sought by them in their plaint and initial order dated 27.11.2014 was rectified by passing the order dated 28.11.2014, this Court needs to permit the petitioners to bring the required amendment in their pleadings and as such, the relief sought by the petitioners in their writ petition may be granted.

¶33

Learned counsel for the petitioners Mr.Alok Chaturvedi submitted that at the time of passing of the initial order dated 27.11.2014, no objection was raised by the respondents and this Court allowed the writ petition but inadvertently while dictating the order dated 27.11.2014, the Court recorded that the documents filed by the petitioner may be taken on record and

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(4 of 9)

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[WMAP-379/2014]

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such an inadvertent error has been allowed to be rectified by the Court by passing the detailed order on 28.11.2014.

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Learned counsel for the petitioners on merits of the

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matter submitted that the present suit has been filed by the petitioners for seeking permanent injunction and there is a description of the property in the plaint itself and the petitioners have specifically pleaded that the respondents intend to encroach upon the land which is situated towards East side of the property owned by the petitioners and the said adjacent land on the Eastern Side also belongs to the petitioners, as such, in order to give a proper description of the property, the respondents filed amendment application which has wrongly been rejected.

¶39

Learned counsel for the petitioners submitted that by seeking amendment, the respondents have neither changed the nature of suit nor prayer is changed and as such, the Court below has wrongly rejected their application.

¶40

Learned counsel further submitted that the respondents-defendants in their written statement disputed the documents and location of the property, furthermore the necessity had arisen to place on record the relevant documents by filing an application under Order 7 Rule 14 CPC by bringing on record the sale deed executed in the year 1932 and such application was allowed by the Court on 20.03.2009.

¶41

Learned counsel submitted that the amendment application was filed in September, 2013 as there was interim /stay order operating in the proceedings and as such, after due diligence, petitioners exercised their rights and only on account of delay, the Court below could not have rejected their application.

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(5 of 9)

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[WMAP-379/2014]

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Learned counsel for the petitioners further submitted that suit was filed by the petitioners and as such, there is no interim order operating as on today and if amendment is allowed, the respondents would not suffer and this Court can compensate the respondents by paying reasonable cost to them.

¶45

Learned counsel Mr.R.M.Jain appearing for the respondents-defendants submitted that this Court initially had passed the order dated 27.11.2014, as no argument was made on behalf of the petitioners with regard to the proposed amendment, which petitioners wanted to make in their pleadings and only on the point of taking the documents, submissions were made by learned counsel for the petitioners and this Court accordingly passed the order.

¶46

Learned counsel for the respondents submitted that the order dated 28.11.2014, was passed by modifying the earlier order dated 27.11.2014 without hearing counsel for the respondents and as such, the application was filed on their behalf to recall the order dated 28.11.2014 and the same has been allowed by this Court and as such, order dated 28.11.2014 cannot be maintained and the writ petition filed by the petitioners is required to be dismissed.

¶47

Learned counsel for the respondents further submitted that provision with regard to amendment in pleading under Order 6 Rule 17 CPC has been amended in the year 2002 and as per the proviso, the application cannot be allowed after Trial has commenced and further if the Court has to allow such application, due diligence of the party preventing them to amend the pleadings, has to be shown before the Court and in the present

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(6 of 9)

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[WMAP-379/2014]

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facts of the case, petitioners took as many as 4 years after their application under Order 7 Rule 14 CPC was allowed.

¶51

Learned counsel further submitted that sale deed said

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to be executed in the year 1932 was already in the knowledge of the petitioners when the plaint was filed and as such, subsequent developments can only be brought on record by way of amendment of pleading and in the present facts of the case, the document which was already in existence and in knowledge of the petitioners, could not have been permitted to be part of their pleadings by way of amendment.

¶53

Learned counsel for the respondents also places reliance on a judgment passed by the Apex Court in the case of Ajendraprasadji N. Pande & Anr. Vs. Swami Keshavprakeshdasji N. & Ors. reported in [AIR 2007 SC 806] .

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Learned counsel on the strength of the said judgment submitted that Trial commences when the issues are settled, then the amendment in the pleadings cannot be allowed.

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Learned counsel for the respondents also places reliance on a judgment passed by this Court in S.B. Civil Writ Petition No.6717/2005 (Jagdish Prasad V/s. The Gram Panchayat, Govindgarh & Ors.) decided on 29.11.2011.

¶56

On the contrary, learned counsel for the petitioners Mr.Alok Chaturvedi places reliance on the judgment passed by the Apex Court in the case of Abdul Rehman and Another Vs. Mohd. Ruldu and Ors. reported in [(2012)11 SCC 341].

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Learned counsel on the strength of the said judgment submitted that the object of Order 6 Rule 17 CPC is to allow the amendments which are necessary for determining the real

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(7 of 9) [WMAP-379/2014]

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question and controversy between the parties and issue of limitation should be considered later on and as such, only on the ground of delay, such amendment should not be discarded by the Court.

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I have heard the submissions made by learned counsel for the parties and perused the material available on record.

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This Court finds that initially order dated 27.11.2014 was passed by this Court and inadvertently instead of allowing the amendment, this Court directed that the document filed by the petitioners may be taken on record.

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This Court is at loss to understand as how the petition challenging the amendment declined to a party have any relevance for giving a finding with regard to taking certain documents on record.

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This Court finds that such bona-fide inadvertent error while recording the order, the Court immediately on the next date, rectified the position by passing the order dated 28.11.2014 and clarified that earlier order dated 27.11.2014 was required to be suitably modified and accordingly, this Court allowed the writ petition filed by the petitioners permitting them to bring on record the amendment, which they were seeking.

¶64

This Court finds that once the order dated 28.11.2014 was passed, there remain hardly any doubt about the final view of this Court and as such, amendment sought by the petitioners came to be allowed.

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The submission of learned counsel for the respondents that the order dated 28.11.2014, was passed without hearing them and as such, they need to be heard again, this Court finds that as far as the merits of the matter is concerned, the Co-

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(8 of 9)

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[WMAP-379/2014]

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ordinate Bench of this Court has already applied its mind and allowed the writ petition filed by the writ petitioners.

¶69

This Court in order to consider the rival submissions of both the parties, as per the order dated 14.01.2016 passed by this Court in Review Petition No.3/2015, again heard learned counsel for the parties on merits of the matter.

¶70

This Court finds that the petitioners in their plaint has made a reference of description of the property which they own and further they also mentions about the adjacent land, which is said to be falling on the eastern site, where the respondents are allegedly making their encroachment.

¶71

This Court finds that the application filed by the petitioners under Order 7 Rule 14 was already allowed and the document relating to the property which is said to be situated on eastern side, was having bearing in the matter and as such, if the proposed amendment is brought by the petitioners, no loss can be suffered by the respondents and they will have adequate opportunity to raise all their objections as far as proposed amendment in pleading is concerned.

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This Court further has to find as whether the amendments sought by the petitioners suffer from delay or proviso contained in Order 6 Rule 17 CPC will come in their way by not permitting to allow such an amendment to be brought on record after commencement of Trial, this Court finds that once application to bring document on record was allowed then there has to be proper pleadings to the same effect and if the proceedings in the suit were stayed by this Court, the petitioners in the bona-fide manner, did not file any application for amendment and after vacation of stay order by this Court, if

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(9 of 9)

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[WMAP-379/2014]

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application is filed for bringing on record the amendment, no injustice can be caused to the other side as no interim order was operating as well.

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This Court finds that the order dated 28.11.2014 does not require any interference by this Court and accordingly writ petition filed by the petitioners in terms of order dated 28.11.2014 is required to be allowed.

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This Court, however, is concerned with the fact of pendency of the suit in the Civil Court as well as filing of different applications in the writ petition and as such, this Court is required to impose cost on the petitioners. This Court considering the nature of applications filed by the petitioners and time taken by both the parties in protecting the litigation, a sum of Rs.25,000/is imposed towards cost on the petitioners.

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Accordingly, the petitioners will pay cost of Rs.25,000/to the respondents on the next date of hearing before the Trial Court and only on payment of said cost, the amendment in the plaint will be allowed.

¶79

Resultantly, the present misc. application stands

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disposed of.

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(ASHOK KUMAR GAUR), J

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Himanshu Soni/17

Gopaldutt Mishra and Ors. v. Anand Singh and Anr.

Case brief

What is this about?

What did the court decide?

Gopaldutt Mishra and Ors. v. Anand Singh and Anr.

Case brief

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