Bhagwandas vs Krishnadas And others

The present petition is arising out of an order dated 11.11.2019 passed by the trial Court in Civil Suit No.41-A/2016.

The facts of the case reveal that plaintiff has filed suit for declaration of title challenging the mutation orders as well as claiming partition. The plaintiff and the defendants are relatives. The suit was filed on 1.3.2016 and the present petitioner, who is the defendant filed written statement on 8.7.2016 and it was stated by the defendant that there is a will in existence executed by mother of the defendant, of which the defendant was a beneficiary.

Learned counsel has placed reliance on the judgment delivered in the case of Abdul Rehman Vs. Mohd.Ruldu, reported in 2012 (III) MPWN 104 as well as the judgment delivered in the case of Baldev Singh and others Vs. Manohar Singh and another, reported in 2006 (III) MPWN 278 and his contention is that amendment application can be filed at any stage. It is prayed that amendment application can be permitted to be filed. The Hon'ble Supreme Court in the case of Pandit Malhari Mahale Vs. Monika Pandit Mahale and others passed in Civil Appeal No.189 of 2020, has held as under :-

"From the evidence on record, it does appear that evidence had begun and thereafter amendment application was filed. Without there being any finding by the Court as contemplated by Order VI Rule 16 proviso, the Court ought not to have allowed the amendment.

In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In Vidyabai & Ors. v. Padmalatha * Anr. [ (2009) 2 SCC 409 ], this Court observed in para 19 as under :

"19. It is primal duty of the Court to  decide as to whether such an amendment is necessary to decide the real dispute between the parties.

Only if such a condition is fulfilled, the  amendment  is  to  be  allowed.

However, proviso appended to order 6 Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court's jurisdiction in a case of this nature is limited.

Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint."

There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the Trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. In view of aforesaid, we allow the appeal and set aside the order of the High Court as well as of the Civil Judge, the amendment application stands dismissed."

In light of the aforesaid judgment this Court is of the opinion that the amendment application preferred by the defendant was an after thought and filed only to derail the trial. There is no jurisdictional error committed by the trial Court warranting interference under Article 227 of the Constitution of India. The petition stands dismissed. However, in case the defendant looses in the trial, he shall be free to raise the grounds raised in the present petition in appeal.