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Judgment
Rule. Rule made returnable forthwith. Considering the subject matter of the Writ Petition, I have heard learned counsel for the respective parties for final disposal of the Writ Petition.
Feeling aggrieved by an order dated 17.10.2023 passed by learned 2nd Joint Civil Judge, Senior Division, Parbhani, on an application below Exh. 50 in Regular Civil Suit No.173 of 2011, the plaintiff has approached this court invoking jurisdiction under Article 227 of the Constitution of India. Vide the impugned order, the Civil Court has turned down the request filed by the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure for amendment in the Exh.1 i.e. the plaint of the suit.
The plaintiff has filed the suit seeking recovery of possession from the custody of the defendants/present respondents. The suit property is described at paragraph 2 of the plaint. The suit is filed in 2011. The defendants appeared and lodged their response. Issues were framed on 02.11.2012 and the matter was posted for evidence. The record reveals that for months together the suit remained pending. The petitioners entered his examination-in-chief, however, did not make him available for cross-examination by the other side. By giving last chance to the plaintiff on 17.11.2014 the matter was adjourned to 01.12.2014. On 01.12.2014, the Civil Court observed that the plaintiff was seen absolutely not interested in prosecuting his suit despite having given a number of opportunities. Resultantly, the suit came to be dismissed for want of prosecution. Learning dismissal of the suit the plaintiff rushed to the Civil Court and prayed to restore the suit thereby undertaking to prosecute the suit expeditiously. In the interest of justice the said application was allowed by the Civil Court by recording objection of the defendants.
Thereafter, instead of undergoing cross-examination by the other side, the plaintiff filed an application below Exh.50 seeking amendment in the plaint in respect of details of the suit property. The petitioner/plaintiff contended that inadvertently the four-boundaries of the suit properties remained to be cited in the plaint, and hence it was necessary to amend the plaint itself. It is further contended that the description of the suit property needs to be brought on record by producing sketch map of the suit property. On these counts, the Civil Court was requested to invoke the provisions of the Order 6 Rule 17 of C.P.C.
The defendants opposed the application and submitted that this was another attempt to prolong the suit with an intent to harass the defendants thereby keeping the suit property lingering in litigation.
After hearing both the parties, learned Judge of Civil Court by impugned order dated 17.10.2023 turned down the application. It is against this the petitioner is before this court.
Mr.Akram Inamdar holding for Mr.S.S.Kazi, learned advocate for the petitioners would submit that the amendment could not have changed the nature of the suit. What was prayed is to grant permission to give further details of the suit property in the plaint. He would submit that petitioners/plaintiffs never carried litigation to keep the suit property under adjudication. The petitioners/plaintiffs have lawful right in the suit property, and hence to arrive at correct conclusion in the civil suit, the amendment was sought in application below Exh.50. Thus, he prays to allow the Writ Petition.
Learned advocate for the respondents would strongly object the petition. He would submit that the application for amendment cannot be allowed to fill up the lacuna in the pleadings. He would submit that change in the nature of suit is not sole criteria for deciding the application under Order 6 Rule 17 of the C.P.C. He further submits that the facts speak itself. That, the plaintiffs merely lodged the suit, entered examination-in-chief and avoided further court proceedings. Thus, with these submissions, learned advocate for respondents prays for dismissal of the Writ Petition.
I have extensively heard learned advocates for both the parties. As could be seen, the suit is for recovery of possession of the suit property which is filed in 2011. The record speaks that the suit remained pending for years together only at the best of the petitioners. After entering the examination-in-chief, the petitioners in fact avoided their cross-examination. Resultantly, the suit was dismissed. By an undertaking that they would meticulously prosecute the suit and would make them available for cross-examination, the suit was restored back to its original position to give opportunity of hearing to the parties. Thereafter, instead of facing the cross-examination, the plaintiffs lodged application Exh.50. What is sought in amendment is four-boundaries of the suit property and production of some sketch map. The defendants while objecting the said application, have specifically contended that in the written statement they have disputed that the plaintiffs have not given detail and correct particulars of the suit properties i.e. four boundaries. The plaintiffs have to be meticulous while giving the better particulars of the suit properties or else to face the consequences. An amendment cannot be used to fill up the lacuna. True, the said application might not be changing the nature of the suit or change the prayers in the suit. However, in the light of the substantive defence raised by the defendants in the pleading as regards the better particulars of the suit property, the plaintiffs at this juncture cannot be allowed to fill up the lacunae which is in the form of substantiate deficiency in the pleadings.
This Court is aware that Order 6 Rule 17 of the C.P.C. entitles a party to seek amendment at any stage of the suit. However, there is specific embargo in the provision which gives power to the Civil Court to consider the application, provided that the application was filed with due diligence and referring to pleadings which after due diligence, a party could not act at appropriate time. In the given set of facts there is nothing on record to show that despite due diligence the plaintiffs/petitioners could not incorporate four-boundaries of the suit property in the Exhibit 1. Hence, I do not find any infirmity or illegality in the impugned order and the view expressed by learned Civil Judge. No case is made out for interference by this court under Article 227 of the Constitution of India.
I have taken a note that the suit filed for recovery of possession is pending since, at least, last 15 years. Obviously, this is at the behest of the petitioners/plaintiffs. The application for amendment under Order 6 Rule 17 of C.P.C. is moved in the month of November, 2022. It shows that the said application was filed to prolong the suit proceedings and to keep the suit property under adjudication. I have reason to record this finding on the count of the observation made earlier that after restoration of the suit, instead of facing the cross-examination, the application Exh.50 was filed. Hence, in my considered view, the Writ Petition is liable to be dismissed with exemplary costs.
In view of the above, the Writ Petition stands dismissed with costs of Rs.10,000 (Rupees Ten Thousand). Cost be deposited by the petitioners in the Civil Court. If costs is not deposited. the same shall be recovered as land revenue. Rule is discharged.
Learned Judge of Civil Court is requested to conclude the proceedings within six months from today. The parties shall appear before Civil Court on 24.08.2026.
The petitioners/plaintiffs shall keep themselves present for cross-examination on 24.08.2026. Thereafter, the defendants shall conclude the cross-examination. In any case, no party shall seek any adjournment unless a justifiable reason is shown. While granting such adjournment, if claimed, the Civil Court shall specifically record reasons for granting adjournment and would conclude the suit within stipulated period.