Radhakisan Agrawal vs Rampratap Agrawal, Registered Partnership Firm through its partner Ravidatta Rameshwarlal Agrawal and Others

R.M. Savant, J.—Rule, with the consent of the parties, made returnable forthwith and heard.

This petition filed, under Articles 226 & 227 of the Constitution of India, takes exception to the order dated 18.11.2010 passed by the learned Civil Judge, Senior Division, Nagpur, by which order the application for amendment of the counter claim filed by the Respondent Nos. 3, 5 and 6 herein came to be allowed.

It is required to be noted that the suit was originally filed in the year 1986 and numbered as Regular Civil Suit No. 521/1986. Thereafter, on the change in jurisdiction the suit came to be transferred to the Court of Civil Judge, Junior Division, Amgaon which came to be registered as Regular Civil Suit No. 37/1993. In the said suit the dispute has been filed for declaration and possession of an area of 227 sq.ft. which has been leased out by the Plaintiff to the Respondents herein. It is required to be noted that the written statement was originally filed on 02.04.1987 which includes the counter claim and thereafter has been amended on four occasions i.e. on 25.02.1994, 12.08.1999, 20.09.2005 and 19.01.2007. The amendment was allowed by virtue of the impugned order to the written statement. The Defendants to the said suit i.e. the Respondent Nos. 3, 5 and 6 herein moved an application for amending the counter claim by amending the prayer Clause (2) mentioned in the application. The said proposed amendment is as follows:

that, the decree of declaration be granted that the Defendant No. 6 are the owner of 0.11 decimal land of gat No. 246 now new survey No. 1444 of Amgaon

It was stated in the amendment application that the proposed amendment is formal in nature, and gives proper explanation, and that the proposed amendment would not change the nature of the defence in the counter claim. The said application came to be opposed by the Plaintiff by filing his reply inter alia contending that in the facts and circumstances the said amendment application could not be allowed.

The Trial Court by the impugned order dated 18.11.2010 allowed the said application. The objection raised on behalf of the Petitioner herein was turned down. The Trial Court has observed that the yardstick for allowing an amendment is as to whether the proposed amendment facilitates resolution of the real controversy between the parties, which finds place in paragraph 7 of the impugned order. In the instant case the gist of the reasoning of the trial Court is that the amendment application is required to be allowed, if it facilitates in deciding the real controversy between the parties. The objection of the Petitioner as regards the applicability of the amended provisions of the CPC came to be turned down, in view of the fact that the suit is of the year 1986. Though, it is well settled that amendments can be allowed at any stage of proceedings, the application propounding the amendments should contain the reasons as to why the said amendments were moved at a particular stage, more so when there is huge gap between the filing of the proceedings and the modification sought by the amendment. In the instant case, it is pertinent to note that the suit was originally filed, claiming total area 50x90 and the same is now sought to be changed to 0.11 decimal i.e. area admeasuring 11,000 sq.ft. Hence, the dimension of the claim raised in the counter claim filed by the Respondent No. 6 has drastically changed hence to say that no prejudice will cause to the Plaintiff is to trivialize the matter. It is also required to be noted that the Defendants amended the counter claim and the written statement on as many as four occasions prior to the present amendment application. Why the said application could not be moved earlier, has not been stated no justifiable reasons is found in the application, it is only stated that it was a mistake committed by the earlier counsel. Though the amended provisions of the CPC are not applicable to the instant suit, however, even as per the unamended provisions the application made by a party for amendment is required to satisfy the test of due diligence, the same could not be said to be satisfied in the instant case, more so in the teeth of the facts of the instant case, when on four occasions the written statement has already been amended.

In my view, in the conspectus of the facts as mentioned herein above, the order passed by the Trial Court allowing the amendment is wholly unsustainable and is required to be set aside and is accordingly set aside.

Rule is made absolute, in terms of prayer Clause (A).

It is required to be noted that the witness of Plaintiff whose evidence has been recorded on 10.11.2004 is to be cross examined on behalf of Defendants. Considering the fact that the original suit was filed in the year 1986, the hearing of the said suit is expedited.