Yakub Ali vs Rubi and Others

Alok Singh, J.—Defendant/Petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India assailing order dated 21.10.2009 passed by Civil Judge (Junior Division), Jagadhri, thereby allowing amendment application moved by the Plaintiffs, Respondents herein.

Brief facts of the present case are that Plaintiffs had filed suit challenging the judgment and decree dated 11.1.1990 on the ground that it has been obtained by playing fraud and misrepresentation on the Court as well as on the Plaintiffs. Plaintiffs in the suit, from the very initial stage had claimed themselves a joint owner of the property.

By way of the amendment, Plaintiffs want to introduce certain grounds in the plaint to justify the plea of fraud and misrepresentation. Plaintiffs further want to add one of the relief claiming joint possession over the property in dispute. Learned trial Court has observed that by allowing amendments sought neither cause of action would change nor nature of suit would change. Learned trial Court further observed that amendments sought is in clarification in nature.

Learned Counsel appearing for the Petitioner/Defendant vehemently argued that in view of the proviso of Rule 17 of Order 6, after the commencement of the trial amendment shall not be allowed until and unless party seeking the amendment proves that despite of due diligence, facts sought to be introduced were not in his knowledge.

I have given my serious thought to the arguments advanced by learned Counsel appearing for the Petitioner. In my humble opinion, proviso to Rule 17 of Order 6 would apply only when party seeking amendment wants to introduce new plea or case. Since plea of fraud and misrepresentation is already in the pleading from the very initial stage, hence, ground to prove fraud and misrepresentation would not amount to new plea. Ground to prove fraud and misrepresentation would amount to clarification in the pleading. Moreover, if amendment sought does not require any further evidence or inconsistent evidence, such type of amendment giving clarification in the pleading must be allowed.

As observed hereinabove, pleading sought to be added is clarificatory in nature and it does not amount to new case, hence, learned trial Court has committed neither jurisdiction error nor any legal error while allowing the amendment.

Petition is devoid or merit, hence, is dismissed.