Ashutosh Banjari And Ors vs Ashok Banjari And Ors

Sanjay K. Agrawal, J

Heard on the question of admission.

Since both the writ petitions involve common question of law and fact, they are heard together and are being disposed of by this common order.

The petitioners herein / plaintiffs therein filed a suit for declaration of title and permanent injunction way back on 30-11-2006 in which written statement was filed by the defendants therein / respondents herein way back on 10-4-2007 and the case was fixed for evidence for the first time on 5-8-2010 and now, after filing of affidavit under Order 18 Rule 4 of the CPC, the plaintiffs filed application that they be allowed to amend the plaint to the effect that the alienation made by the defendants is not binding on the plaintiffs and decree of possession be granted in their favour which was rejected by the trial Court on 18-2-2019 against which these writ petitions under Article 227 of the Constitution of India have been preferred. Thereafter, the petitioners / plaintiffs again filed an application under Order 6 Rule 17 of the CPC and prayed for amendment and also prayed for impleadment of purchasers of the suit land, that has also been rejected by the trial Court on the ground of delay and having been filed after the commencement of trial holding that the sale deed was made in the years 1966, 1972, 1973, 1974, 1984 and 1986 and the suit was filed in the year 2006, therefore, the amendment could not be allowed. Now, questioning the rejection of the amendment, the instant writ petitions have been preferred by the present petitioners / plaintiffs.

Mr. H.B. Agrawal, learned Senior Counsel appearing for the petitioners / plaintiffs, would submit that the trial Court is absolutely unjustified in rejecting the application for amendment on the ground of delay, as the amendment is just and proper for the disposal of suit.

I have perused the impugned orders with utmost circumspection.

As noticed herein-above, the suit was filed on 30-11-2006 for declaration of title and immediately thereafter, written statement was filed by the defendants on 10-4-2007 stating inter alia that the part of the suit land has already been sold to 13 persons much prior to the filing of suit, but the plaintiff did not make application for amendment and allowed the suit to progress and any how, the suit could be listed for evidence on 5-8-2010 and now, after nine years, affidavit under Order 6 Rule 17 of the CPC has been filed which the trial Court rejected on the ground of commencement of trial. There is no whisper in the application that why this application for amendment could not be preferred before the commencement of trial. There is no explanation for the delay of 13 years in filing the amendment application, particularly when the alienation, which is the subject matter of the application for amendment, is ranging from years 1966, 1972, 1973, 1974, 1984 to 1986. In that view of the matter, on the ground of delay in filing the amendment application and that the amendment relates to alienation made much prior to the filing of suit which has already been disclosed in the written statement filed on 10-4-2007, the amendment application has been rejected by the trial Court. The application is conspicuously silent as to why the amendment could not be preferred before the commencement of trial. I do not find any perversity or illegality in the order rejecting the application for amendment. Consequently, both the writ petitions are liable to be and are accordingly dismissed in limine. However, the petitioners / plaintiffs are at liberty to raise the points in appeal, if ultimately, they are required to prefer appeal. No order as to cost(s).