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Judgment
The Petitioner has challenged the order dated 26.09.2022 passed in Civil Suit No.281/2010 (Rajkumar Nanda vs. Nirmala Nanda & Ors) passed by the Additional District Judge (FTC), District Dhamtari in which, the application for amendment under Order 6 Rule 17 CPC has been allowed.
Shri Agrawal, learned Senior Advocate for the Petitioners/Defendants submits that in para-29 of the judgment dated 05.07.2019 passed in F.A No.308/2015, the trial Court was directed to decide the lis within a period of 6 months, which is as under:-
“29. Therefore, we set aside the impugned judgment and decree and remand the matter to the Trial Court. In the result, the appeal is allowed. The impugned judgment and decree is set aside. The matter is remanded back to the Trial Court. The plaintiff shall be allowed reasonable opportunity to amend the plaint to seek appropriate relief for declaration of title. The defendants shall also be allowed reasonable opportunity to make consequential amendment in the written statement. After framing of additional issue on title, learned Trial Court shall allow both the parties to adduce additional evidence and pass judgment in accordance with law. The parties shall appear before the concerned Trial Court on 30/07/2019 and within a period of six months, learned Trial Court shall conclude the trial.”
He further submits that the lis has not been decided within the said period and the trial Court has neither prayed for extension of time to continue with the suit nor has directed the Respondents to get the time extended for incorporating the amendment, which was allowed by the appellate Court, therefore, intervention of this Court is needed to set the aside the impugned order.
On the other hand, Shri Patel, learned Counsel for the Respondents/Plaintiffs strongly opposes the Petition and submits that after passing of the appellate Court’s order, due to Covid situation, further extension of time was granted vide different orders details of which are as under:-
Sl. No.
Case No.
Order dated
Direction
1.
M.C.C No.253/2020
06.03.2020
Extended till 16.06.2020
2.
M.C.C. No.368/2020
07.08.2020
Further extended for four months
3.
WP227/282/2020
14.07.2022
Further directed to conclude the trial within 6 months
4.
M.C.C No.495/2021
08.08.2022
Further extended for 45 days
5.
M.C.C No.546/2022
13.10.2022
Further extended for 45 days
He further submits that in compliance of the appellate Court’s order dated 05.07.2019, the amendment application was preferred on 27.08.2019 which was duly allowed on 18.09.2019 and thereafter, the Petitioner has also filed a consequential amendment and the issues were re-framed and the case was proceeded for re-trial. Meanwhile, the original Counsel of the Respondents/Plaintiffs expired due to Covid and a new Counsel has been engaged, who found that there is a technical flaw as the valuation of the suit has not been properly made and declaration of title which is mandatorily required under the law has also not been pleaded, therefore, such amendment application was preferred to fulfill the legal requirements which does not cause any prejudice to the other side, hence, the trial Court has rightly exercised its jurisdictional authority and allowed the amendment application, which is well merited and does not call for any interference.
Heard learned Counsel for the parties and perused the entire record with utmost circumspection.
It is well settled law that interest of justice must be given importance and procedure should not out-weigh the substantive justice. In the matter of Ashok Kumar Kalra v. Surendra Agnihotri reported in (2020) 2 SCC 394, it was held that questions about procedural justice are remarkably persistent and usual in the life of Common Law Courts. However, achieving a perfect procedural system may be feasible or affordable, rather more manageable standards of meaningful participation needs to be aspired while balancing cost, time and accuracy at the same time.
In the present case, the matter was remanded for filing appropriate amendment application giving sufficient opportunity to the parties to resolve the lis in proper perspective and six months’ time has been granted, on account of Covid and other circumstances, which was continued to be extended from time to time and during such pendency of the lis, the original Counsel engaged by the Plaintiffs has expired and a new Counsel has been engaged, who found some technical flaws in the Petition for which, he filed a fresh amendment application for amending the valuation of the suit and also mentioned the cause of action for declaration of title of the suit as the Respondents/Plaintiffs have stated sufficient reasons for the delay caused and why such application was not filed with due diligence by the earlier Counsel, therefore, proviso added vide amendment 2002 in the provision of Order 6 Rule 17 CPC has also been fulfilled when the trial Court after having examined the scope of the amendment, properly exercised its jurisdiction.
In view of above, this Court does not find any error in the impugned order to interfere with the same invoking its writ jurisdiction.
Accordingly, the Petition is dismissed at the motion stage itself. Registry is directed to send a copy of this order to the concerned Court today itself.