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Judgment
Sujoy Paul, J.—This petition filed under Article 227 of the Constitution assails the order dated 04.04.2013 passed in Civil Suit No. 12A/2012 by the Civil Judge Class II, Gohad, District Bhind. By this order the application preferred by the plaintiffs under Order 6 Rule 17 C.P.C. has been rejected by the Court below. Petitioners/plaintiffs preferred an application under Order 6 Rule 17 read with section 151 C.P.C. (Annexure P/4) seeking amendment. The defendant filed his reply Annexure P/5. The amendment application was rejected on the ground that in support of application for amendment the petitioners haves not produced any evidence nor filed any photograph to show that during the pendency of the suit any additional construction has been made by the defendant. On the basis of aforesaid reason the trial Court opined that there is no material to show that construction was made subsequently and application is based on subsequent event.
Criticizing the said order, Shri Harish Dixit, learned counsel for the petitioners submits that this amounts to entering into the merits of the case at the stage of amendment application which is impermissible in the teeth of judgment of Supreme Court reported in Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others,
Per Contra, Shri H.K. Shukla, learned counsel for respondent No. 1 and Shri Abhinav Agnihotri, learned counsel for the respondent No. 2 supported the order passed by the Court below. It is contended by them that petitioners have completely failed to prove the averments of the amendment application and the Court below has not committed any error in holding that the petitioners did not produce any material to show that the alleged reconstruction was made by the defendant during the pendency of the suit.
I have heard learned counsel for the parties and perused the record.
On specific question from the Bench, learned counsel for the parties admitted that the suit is at the stage of plaintiffs evidence and at this stage the amendment application is rejected.
It is settled in law that amendment applications are required to be dealt with leniently. If the amendment changes the nature of the case, filed with any oblique motive to delay the proceedings, causes prejudice to the other side for any reason whatsoever, can be disallowed. However, if amendment does not change the nature of the case, it is necessary for lawful adjudication of the controversy, it can be allowed. This is settled in law that correctness of the averments of the amendment application and proof thereof cannot be insisted upon at the stage of considering amendment application. I find force in the argument of Shri Harish Dixit advanced on the strength of the Supreme Court judgment in Rajesh Kumar (supra) that the Court below has erred in entering into the merits of the case while considering the amendment application.
Thus, in my opinion, the basic reason for disallowing the amendment application is not sustainable and runs contrary to the judgment of Supreme court. The Court below has erred in rejecting the amendment application by entering into the merits of the case and by insisting the proof of averments of amendment application. Therefore, the order needs to be interfered with in the interest of justice.
Resultantly, the order dated 04.04.3013 (Annexure P/1) is set aside. The amendment application of the petitioner is allowed. The respondents may file their consequential reply before the Court below. The Court below may proceed therefrom in accordance with law. Petition is allowed. No Costs.