Hanuman Sen vs Subham Agarwal and Others

R.S. Chauhan, J.—The petitioner-defendant is aggrieved by the order dated 13.2.2014 passed by the Additional Civil Judge (Jr. Div.), Sawai Madhopur whereby the learned Magistrate has dismissed the petitioner''s application under Order 6, Rule 17 CPC.

The brief facts of the case are that the respondents-plaintiffs filed a suit for permanent injunction against the petitioner-defendant on the ground that the defendant No. 2, Nagar Palika, Sawai Madhopur, allotted a strip of land which is in front of the plaintiffs'' shop, to the petitioner-defendant. According to the plaint, allotment of the said strip of land is absolutely illegal. Therefore, the defendant cannot raise construction on the said land. The plea of easementary right was also raised in the plaint. The petitioner-defendant filed his written statement and stated that the strip of land was allotted to him by the Nagar Palika after following the due process of law and for this, the petitioner has also deposited Najarana fees of Rs. 3,49,610/- with the Nagar Palika. The Nagar Palika has also granted permission to the petitioner to raise construction on the land in dispute. During pendency of the suit, the respondents-plaintiffs sold the shops to one Ramkesh. Therefore, the petitioner-defendant filed an application under Order 6, Rule 17 CPC for amending the written statement so as to bring the fact of sale of the shops to Ramkesh on record. However, by order dated 13.2.2014, the learned trial court has dismissed the petitioner''s application. Hence, this petition before this court.

Mr. Dileep Singh Jadaun, the learned counsel for the petitioner, has pleaded that the learned Magistrate has erred in dismissing his application under Order 6, Rule 17 CPC on the ground that on two earlier occasions, she has dismissed his applications under Order 7, Rule 11 CPC. According to the learned counsel, there is a vast difference between an application under Order 7, Rule 11 CPC and an application under Order 6, Rule 17 CPC. While in the former provision of law the prayer is that the plaint should be returned to the plaintiff, in the latter provision the prayer is that an amendment be allowed to be made.

Secondly, during the course of proceedings, on 10.7.2012 the respondents-plaintiffs had sold the shops to Ramkesh which were adjacent to the suit property. Therefore, subsequent development in the case had to be brought to the notice of the learned trial court by amending the written statement. Hence, an application under Order 6, Rule 17 CPC had been filed. However, without noticing the fact that it was a subsequent development, without noticing the fact that sale of the shops belonging to the respondents-plaintiffs would have an impact on the suit and specially on the prayer sought in the suit, the learned Magistrate has dismissed the application on illegal grounds.

On the other hand, Mr. Amir Aziz, the learned counsel for the respondents, has contended that the application filed under Order 6, Rule 17 CPC is merely a clever ploy to prolong the trial.

Secondly, even on two earlier occasions applications under Order 7, Rule 11 CPC had been filed for bringing it to the notice of the trial court that the respondents-plaintiffs have sold the shop, therefore the plaint should be returned. However, the case involves a public Chowk which could not have been sold by Nagar Palika to the petitioner. Therefore, the cause of action continues with the respondents-plaintiffs. Hence, the learned Magistrate was justified in rejecting the application under Order 6, Rule 17 CPC. Therefore, the learned counsel has supported the impugned order.

Heard the learned counsel for the parties and perused the impugned order.

It is, indeed, trite to state that Order 7, Rule 11 CPC and Order 6, Rule 17 CPC operate in two different fields. While Order 7, Rule 11 CPC deals with returning of the plaint for lack of cause of action, Order 6, Rule 17 CPC deals with an amendment which the party may wish to make during pendency of the suit. Therefore, merely because an application has been dismissed earlier under Order 7, Rule 11 CPC would not pre-empt the party from moving an application under Order 6, Rule 17 CPC.

In the present case, admittedly, during pendency of the suit, the shop previously owned by the respondents-plaintiffs was sold to Ramkesh. A bare perusal of the plaint clearly reveals that the respondents-plaintiffs have sought four reliefs from the learned trial court. Firstly, that since sale of strip of land by Nagar Palika to the petitioner was illegal, he should be permanently injuncted not to raise any construction on the property marked as "C, D, E, F"; secondly, that the petitioner-defendant should be directed to demolish the illegally raised construction. Thirdly, the respondents-plaintiffs had pleaded the right of easement with regard to their enjoyment of the property. Fourthly, any other relief that the learned trial court may grant. Obviously, these prayers relate solely to the right of the respondents-plaintiffs as the owner of the shops. But once the respondents-plaintiffs have sold the property, they, possibly, cannot claim an easementary right. For, he no longer has any interest, or right in the shop. Therefore, it was imperative for the petitioner-defendant to bring the fact of subsequent sale on record. Hence, the petitioner was justified in moving an application under Order 6, Rule 17 CPC for wanting to amend his written statement.

The issue as to what would be the impact of sale of the shop, and whether the suit should be continued to be proceeded with, these are issues which can be decided only after proper amendment is made in the written statement. But merely because the learned Magistrate had dismissed two applications under Order 7, Rule 11 CPC would not, ipso facto, justify dismissal of the application under Order 6, Rule 17 CPC. Therefore, the logic given by the learned Magistrate is clearly unacceptable.

For the reasons stated above, this petition is hereby, allowed. The order dated 13.2.2014 is, hereby, quashed and set aside. The learned Magistrate is directed to permit the petitioner to make the necessary amendment in the written statement. The stay application also stands disposed of.