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Smt. Kala Devi v/s Praveen Surana & Another


Company & Directors' Information:- SURANA CORPORATION LIMITED [Active] CIN = L65991TN1991PLC020783

Company & Directors' Information:- PRAVEEN INDIA LTD . [Active] CIN = L21029WB1983PLC036326

Company & Directors' Information:- SMT INDIA PRIVATE LIMITED [Strike Off] CIN = U51311DL1997PTC089955

Company & Directors' Information:- PRAVEEN & COMPANY PRIVATE LIMITED [Strike Off] CIN = U99999DL1999PTC098397

    Civil Writ Petition No. 12579 of 2015

    Decided On, 16 February 2017

    At, High Court of Rajasthan Jodhpur Bench

    By, THE HONOURABLE MR. JUSTICE PANKAJ BHANDARI

    For the Petitioner: Vivek Shrimali, Advocate. For the Respondents: Sandeep Saruparia, Advocate.



Judgment Text

1. The petitioner has preferred this writ petition aggrieved by the order dated 02.09.2015 passed by Civil Judge (J.D.) Nathdwara vide which applications filed by the petitioner under Order, Rule CPC and Order, Rule (3) of CPC were rejected.

2. It is contended by counsel for the petitioner that during the pendency of the suit, the defendant forcefully put his lock on the premises belonging to the plaintiff-petitioner and the same was a subsequent event which was necessary for deciding the controversy in the suit. The plaintiff-petitioner moved an application under Order, Rule to incorporate the same in their pleadings.

3. Counsel for the petitioner has placed reliance on AIR 2002 SC 3369 Sampath Kumar v. Ayyakunnu and Anr. and (2002) 3 SCC 605 Fritiz T.M. Clement & Anr. v. Sudhakaran Nadar & Anr. Reliance has also been placed on AIR 2004 SC 4102 Pankaja & Anr. v. Yellappa (D) by LRS. & Ors. and AIR 2006 SC 1647 Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors.

4. In Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors. (supra), the Hon'ble Apex Court has placed reliance on (2001) 2 SCC 472, para 5 of which is reproduced as under :

"5. After referring to the judgments in Charan Das v. Amir Khan, AIR 1921 PC 50, L.J. Leach & Co. Ltd v. Jardine Skinner & Co., AIR 1957 SC 357, Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393, Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91 and various other authorities, this court in B.K. Narayana Pillai v. Parameshwaran Pilla, (2000) 1 SCC 712 held: (SCC p.715, para 3) "3. The purpose and object of Order Rule CPC is allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled- for multiplicity of litigation."

5. With relation to application under Order, Rule CPC, it is contended by counsel for the petitioner that during the pendency of the suit, the defendant forcefully put his lock on the premises belonging to the plaintiff-petitioner, upon which, an FIR was lodged by the petitioner and after the police submitted charge-sheet against the defendant, the petitioner moved an application to take on record the copy of the charge sheet and related documents. It is contended that under Order, Rule only leave of the court is required to be taken for producing documents and such document come into existence after framing of the issues, there was no justification for the court below to refuse to take the same on record.

6. Counsel for the respondent has vehemently opposed the writ petition. His contention is that after the amendment in Order, Rule CPC w.e.f. 11.07.2002, a proviso has been inserted which bars allowing of application after the commencement of trial and the same can be allowed if 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. The thrust of the argument of the respondent is that the petitioner has not mentioned a single line with regard to due diligence and as to who prevented him from moving the application earlier.

7. It is contended that the FIR was lodged on 17.04.2011 and the application for amendment has been filed on 19.01.2013. It is contended that if the petitioner was dispossessed, the petitioner should have sought a relief for possession and there being no relief relating to possession, the amendment sought for was rightly rejected.

8. Counsel for the respondent has placed reliance on 2015 (1) DNJ (Raj.) 431, Meera Ben (Smt.) v. Amritlal & Anr. and Parsu Ram v. Jagdish Chandra in S.B. Civil Writ Petition No.4913/2015 decided by this Court on 01.02.2017 in relation to the above arguments.

9. With regard to taking on record the documents, it is contended that the application is highly belated and there is no justification for taking the document at the belated stage. It is also contended that the court below while rejecting the application under Order, Rule CPC has permitted the plaintiff to take recourse under Sub clause (4) of Order, Rule CPC.

10. I have considered the rival contentions of the parties.

11. Dealing with the application under Order, Rule CPC, it can be safely observed that after the amendment in Order, Rule CPC on 01.07.2002, Sub clause 3 now provides that a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. The implication of the above is that the leave of the court is only required. The document in question were not in existence on the date of filing of the suit and therefore, the question of producing them with the plaint was out of question.

12. The plaintiff in his plaint has mentioned that the defendant is trying to demolish his structure and has claimed injunction with regard to his structure. An alternative relief is also sought to the effect that if during the pendency of the suit, the defendant demolishes his structure, a mandatory injunction be granted for restoring his structure. The case of the plaintiff now is that after the filing of the suit, on 17.04.2011 the defendant has forcefully put his lock on the premises. FIR and charge sheet which pertained to the said incident are permitted to be taken on record as the same were not in existence at the time of filing of the suit. The photographs of the premises taken after filing of the suit can also be taken on record but as regards the documents which were in existence on the date of filing of the suit, no reason whatsoever has been assigned for not producing them when the plaint was produced. No list of documents were annexed when the plaint was filed and there is a mere mention that erroneously the documents were not produced. The documents therefore, which were in existence prior to the date of filing of the suit are not permitted to be taken on record but the document which have come into existence after filing of the suit are permitted to be taken on record.

13. Consequently, the order passed by the trial court while deciding the application under Order, Rule (3) CPC stands amended and the said application is hereby partly allowed.

14. With regard to the application under Order, Rule CPC, the proviso of Order, Rule bars amendment after the commencement of trial and such amendment can only be allowed if 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. The case of the petitioner is that after filing of the suit, lock has been put on premises which belong to him and his tenant has been forcefully evicted. But the question still remains that whether the petitioner has approached the court diligently. The petitioner in this case has lodged the FIR on 17.04.2011 and has moved the present application on 19.01.2013 i.e. after a delay of more than one year eight months. In the application, there is no reason for the said delay, the judgment on which the petitioner has placed reliance i.e. Fritiz T.M. Clement & Anr. v. Sudhakaran Nadar & Anr.(supra) was a judgment prior to the amendment in Order, Rule CPC, and therefore, the said judgment has no applicability to the facts of this case.

15. In Sampath Kumar v. Ayyakunnu and Anr. (supra), the Apex Court was also dealing with the possession as existing prior to the substitution of Order, Rule CPC w.e.f. 01.07.2002.

16. In Pankaja & Anr. v. Yellappa (D) by LRS. & Ors. (supra) and Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors (supra), the Apex Court was also dealing with the amendment applications prior to the amendment in Order, Rule CPC.

17. The

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co-ordiante Bench of this Court in Meera Ben (Smt.) v. Amritlal & Anr. (supra), was dealing with the amended provision of Order, Rule CPC and the Hon'ble Court held that the plaintiff is required to establish due diligence and the court can allow an application only if 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. 18. Since in the present suit, even in the amendment application, there is no prayer for possession and if plaintiff has been dispossessed after filing of the suit, he is having a separate cause of action. The application being filed after delay of twenty one months and there being no pleading with regard to due diligence, the court below has not committed any error in rejecting the application filed under Order, Rule CPC. 19. Consequently, the writ petition is partly allowed. Petition dismissed.
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