Nagar Palika Parishad vs Awadh Narain Yadav

Manoj Misra, J.—Heard learned counsel for the petitioners.

The plaintiff- respondent instituted O.S. No. 274 of 1996 for mandatory injunction seeking direction upon the defendant to deliver possession of the suit property pursuant to the auction dated 30.9.1992 and for other ancillary reliefs. It appears that the suit was contested by the defendant petitioners on various grounds. During the pendency of the suit, an application was moved by the plaintiff respondent bearing Paper No. 73 Ka for amendment in the plaint for addition of paragraph 9 A and for addition of an alternative relief in the plaint. The amendment application was moved by alleging that subsequently, it was discovered that a decision was taken by the State Government annuling the auction proceeding and therefore the alternative relief to refund the money deposited by the plaintiff pursuant to the auction proceeding was necessitated.

The trial court by order dated 12.8.2016 rejected the application on two grounds. The first ground was that from the record it appeared that auction proceedings were cancelled in the year 1999 therefore the alternative relief seeking refund of the amount was barred by limitation and as such could not have been allowed. The second ground was that the suit had remained pending for several years and in between there were occasions when the suit had been dismissed for non prosecution and thereafter restored, therefore, the suit being an old suit amendment at such belated stage was not justified.

Against rejection of the amendment application, the plaintiff respondent preferred revision, which has been allowed by the impugned order dated 7.12.2016 and the amendment application 73 Ka has been allowed on payment of cost of Rs. 500/-.

Learned counsel for the petitioners has assailed the order of the revisional court on the ground that the amendment sought was to incorporate a relief which had become barred by limitation and, therefore, the revisional court ought not to have interfered with the order passed by the trial court.

I have considered the submission of learned counsel for the petitioners.

From the plaint averments as also from the pleading sought to be introduced by way of amendment, it does not appear that the plaintiff respondent had become aware of the cancellation of the auction proceeding at the level of the State Government in the year 1999 and, therefore, it is a matter of evidence as to when the petitioners had become aware of the cancellation of the auction proceeding. Accordingly, this Court is of the view that the question whether the alternative relief sought by way of amendment had become barred by limitation is a matter which has to be adjudicated on the weight of the evidence adduced during the trial proceeding and, at this stage, it would not be appropriate for the Court to refuse the amendment on the ground that the relief sought by way of amendment had become barred by limitation. Further, it is well settled in law that all such amendments which are necessary for finally adjudicating the dispute between the parties are to be allowed, unless they cause injustice to the other side or the amendment sought is otherwise barred by the proviso to Order 6, Rule 17 CPC. In the instant case, the suit is of the year 1996 i.e. before the insertion of the Proviso to Rule 17 Order 6 of the Code of Civil Procedure, therefore, the rigors of the Proviso would not be applicable to the amendment application moved by the plaintiff respondent. I, therefore, find no good reason to interfere with the order passed by the revisional court.

The petition is dismissed.