A petition was filed under Article 227 of the Constitution of India, against an order dated 01.10.2018, which was passed by the Learned 2nd Additional Senior Civil Judge, Rajpipla, Narmada below Exh.88 in Regular Civil Suit no. 157 of 2007, wherein, the learned Trial Judge had been pleased to reject the application, filed by the petitioners for an amendment of prayer clause in the suit.
Facts of the present case were that the Petitioners- original plaintiffs had filed a suit for declaration and permanent injunction before the Civil Court at Rajpipla in 2007. In the said suit, they had moved an application under O.6 R.17 of the CPC on 13.03.2018 for amendment by adding a prayer clause, whereby, it was prayed that the disputed land which was in the possession of the Plaintiffs and who cultivated the same and took the produces, although, if the Hon’ble Court would conclude that the disputed land was in possession of the Defendants, then it was prayed to get the possession of that land from the Defendants and hand it over to the Plaintiffs. The said application was rejected by the learned Trial Judge and hence, the Petitioners had filed the present petition.
Submissions before the Court
The learned Advocate Urmi H. Raval, appearing for the petitioners had submitted that the order which was passed by the learned Trial Court was illegal, as the petitioners had filed a suit for declaration and permanent injunction of the suit property and also prayed to restrain the defendants from transferring the said land-based on false and fabricated power of attorney. It was also submitted that the power of attorney was in the defendants’ possession and hence, in 2013, the petitioners had prayed to direct the defendants to produce their power of attorney, and accordingly, under an order dated 26.02.2018, the said power of attorney had come on record.
It was further submitted that while going through the power of attorney, the petitioners had noticed that the signature of their mother in it was forged, and accordingly, they had moved an application Exh.88 for amendment of the plaint, but the learned Trial Judge, rather than appreciating that the petitioners had come to know about the same after production of the power of attorney in 2018, had still rejected the said application. Moreover, it was submitted that under the provisions of O.6 R.17 CPC there wasn’t any absolute bar for granting amendment after the trial had commenced. Further, the Learned Advocate earlier representing the petitioners- plaintiffs before the trial Court, had filed the suit hastily, without ascertaining proper information from the plaintiffs- petitioners. Thus, making the above submissions, it had been prayed to allow the present writ petition and grant amendment as prayed for by setting aside the impugned order.
The learned advocate Mr Apurva R. Kapadia, appearing for the respondents had opposed the present writ petition, supported the impugned order, and submitted that the order passed by the learned Trial Judge was just and proper. It was submitted that it might be under O.6R.17 CPC, that discretion was vested in the Court to allow amendment after commencement of the trial but those powers were required to be exercised judiciously and only when the party couldn’t have raised the matter before the commencement of trial. In the present case, no such case was made out by the petitioners- plaintiffs. Henceforth, it was urged that the present writ petition may be dismissed.
Consideration by Court
After considering the submissions advanced by the learned advocates for both the parties, it appeared to the Court that the petitioners had filed the application Exh.88 under O.6 R.17 CPC for an amendment in the prayer clause. It was their case that they, for the first time, could access the so-called power of attorney in 2018, by virtue of an order dated 26.02.2018 passed by the learned Trial Court, and thereafter, they had moved an application for amendment. The learned trial Court had rejected the said application on the ground that since the trial had commenced, no such amendment could be allowed.
As the facts depicted, the petitioners- plaintiffs had filed the suit in 2007, which was based on the assertion of false and fabricated power of attorney of their deceased mother. Thus, they very well knew of the existence of the power of attorney. Further, if the application of the petitioner for production of a power of attorney by the defendants- respondents would be seen, the same was filed in 2013 i.e., after about more than 5 years of filing the suit. Thus, when the suit of the original plaintiffs- petitioners mainly rested upon the power of attorney, they could have made such an application before also. Now, as the trial had already commenced, the provisions of O.6 R.17 CPC would be referred to, which didn’t absolutely bar the concerned Court to allow such application after the trial had begun, however, a check was put on such application under the proviso to such rule.
The Court observed that the learned Trial Court had rightly concluded that it was not a case where the plaintiffs couldn’t raise the matter before the commencement of trial. Thus, in the considered opinion of this Court, the present case wasn’t a fit case that required interference at the hands of this Court. The petition had, therefore, failed and was dismissed accordingly.
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