Atul Mehra vs J.L. Mehra & Others

Sudhanshu Dhulia, J

This writ petition was dismissed for non-prosecution on 26.07.2019. Now a restoration application (MCC No. 818 of 2019) has been filed by the petitioner for recalling the order dated 26.07.2019.

Grounds shown in the affidavit filed in support of restoration application are just and bona fide. The restoration application (MCC No.818 of 2019) is allowed. Order dated 26.07.2019 is hereby recalled. The writ petition is restored to its original number.

Heard learned counsel for the parties.

This writ petition has been filed by the petitioner invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. This matter arises out of proceedings before the civil court where a suit was filed by the plaintiff/petitioner for cancellation of a sale deed, which was executed by defendant no. 2 in favour of defendant no. 3. The matter relates to the property which, according to the petitioner, is being run as a "dharamshala". The suit itself was filed and registered on 28.05.2007. Written statement was filed by the defendant nos. 1 and 2 in the matter on 01.07.2008 and thereafter after a period of three years, after the filing of the written statement, an amendment application was moved by the plaintiff before the court below on 07.09.2011, whereby it seeks to change its earlier stand that "the property was being run by a firm" to that the property in question was being run under the management and control of a trust". This amendment application was rejected by the trial court on 12.04.2012 on ground that it changes the nature of the suit. In other words, a new case was being set up by the plaintiff/petitioner. Aggrieved by the order dated 12.04.2012, the petitioner has filed the present writ petition before this Court.

The procedure for amendment is given under Order VI Rule 17 of the CPC. Order VI Rule 17 reads as under:-

"Order VI Pleadings Generally Rule 17. Amendment of pleadings.-

The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

It is true that the amendment application can be allowed at any stage, but this is all subject to certain well-known restrictions, such as, that the amendment application should not change the nature of the suit and once the application has been made after the trial has commenced, reasonable explanation as to why the amendment is being sought must be given.

Learned Senior Counsel for the petitioner Sri Rajendra Dobhal has argued that such application (i.e. for amendment of the plaint or written statement) should be seen in the larger interest of justice so that multiplication is avoided and hyper-technical view may not be adopted.

Though this may indeed be true, but the fact remains that once an inordinate delay has been caused, such as, in the present case, which is more than three years, reasonable explanation must be given. This has not been given by the petitioner in the present case. Moreover, this Court has been informed that issues have already been framed by the trial court, and therefore, at this stage, no interference is being called for by this Court.

Consequently, the writ petition fails and it is hereby dismissed.

However, the petitioner would be at liberty to make a prayer for framing of additional issues, subject to law contained therein and subject to the pleadings therein.