Rajiv Nayan vs Municipal Council

Sanjay Yadav, J.—Heard on admission.

This is plaintiff''s Second Appeal directed against the judgment and decree dated 08.04.2008 in Civil Appeal No. 20-A/2008 by Second Additional District Judge, Chhindwara affirming the judgment and decree dated 24.12.2004 in Civil Suit No. 155-A/1998 by Fifth Civil Judge-II to the Court of District Judge Chhindwara.

In respect of plot No. 71/1 area 50 X 100= 5000 sq.ft. Block No. 4, Nai Abadi Chhindwara brought an action for declaration of ownership, for possession of 750 sq.ft. and for declaration that letter dated 03.11.1987 and 16.11.1987 as null and void and for declaration that the plaintiff is entitled for sanction of map as submitted on the ground that the defendant instead of removing encroachment on the opposite side of suit property had increased the width of road on the plaintiff''s side and thus encroached upon 15'' x 50'' = 750 sq.ft. and the plaintiff though a lease holder has been wrongly deprived of his land to raise construction there over .

The trial Court on a finding that the plaintiff though sought possession over 750 sq.ft. but has not valued the suit accordingly which as per paragraph 11 of PW1''s statement comes to Rs. 50-60 per sq.ft. i.e. approximately Rs. 37,500/- found that it was beyond the Court''s pecuniary jurisdiction to lay the suit, accordingly, non-suited the plaintiff.

Before the Appellate Court the plaintiff sought amendment in the plaint to meet out the verdict by the trial Court. Appellate Court declined to entertain the application holding that the same was to meet out the shortcomings in the suit which has been dismissed.

Though contended that Courts below committed error of law in dismissing the suit on the count of jurisdiction and disallowing the application seeking amendment in the plaint. However, taking into consideration specific plea being raised by the defendant vide paragraph 20 as regard to valuation and that suit is liable to be dismissed for non-payment of Court fees as per section 7(4)(c) of the Stamp Act and that issue was framed as issue No. 4 it is the plaintiff who took chance in not amending the plaint and affix proper Court fees, the trial Court in given facts was well justified in not returning the plaint but dismissing the same and the affirmation thereof in Appeal cannot be faulted with.

As regard to non granting the leave to amend, proviso to Rule 17 of Order 6 CPC stipulates:

"No application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial." 8. True it is that at any stage an amendment can be sought to bring on record and elucidate the facts as would help the Courts to arrive at a just decision, and the Courts generally should be liberal in considering such applications. The parameter however, changes when an amendment in pleading is sought after the trial has commenced. In that case the Court dwelling upon such application has to satisfy itself that despite of exercising of due diligence the party which seeks an amendment could not bring the facts on record at the time of filing the suit or written statement, as the case may be.

In Vidyabai and Others Vs. Padmalatha and Another, it has been held:

"19. ...However, proviso appended to Order VI, 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." 10. Recently in In J. Samuel and Others Vs. Gattu Mahesh and Others, : it is observed by their Lordships:

"18. ...The Court''s discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states that:

"...no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 19. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term ''Due diligence'' is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial."

Having thus considered, this Court does not perceive any error of law as would give rise to substantial question of law. Since trite it is that a person cannot be left remedyless and since the suit has been dismissed on the ground of pecuniary jurisdiction, the plaintiff would always be at liberty to file a fresh suit before appropriate Court having jurisdiction.

Subject to liberty granted, Appeal fails and is dismissed. No costs.