# /Defendant v. Musaram & others / Plaintiff

- **Citation:** (2007) 1 ILRA 45
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-08-31
- **Case number:** Civil Misc. Writ Petition No. 27432 of 2004
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/defendant-v-musaram-others-plaintiff-40880
- **Pages:** 3

## Headnote

Code of Civil Procedure-as amended by
Act No. 22 of 2002-Amendment in Plaintafter 7 years when issues framed and
Trail Commenced-no reasons disclosed
for not taking this plea as earliest-when
suit instituted-once trail commenced it
should not be delayed-amendment-heldnot justified.

Held: Para 8

In
the
present
case,
it
has
been
specifically argued by the petitioner and
not disputed by the respondent that the
trial of the suit had commenced at the
time
of
filing
of
the
amendment
application and as such the proviso to
Rule 17 would be attracted and in the
absence
of
the
plaintiff-respondent
having been able to show that in spite of
due diligence, he could not have raised
the issue involved in the amendment
before the commencement of the trial,
allowing of the amendment application
would not be justified in law.
46 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Case law discussed:
2006 ACJ 989 distinguished.

## Text

1 All] Kantu V. Musaram and others
45
selling only one bigha of land. In the year
1968 average value of agricultural land in
U.P was about Rs.5000/- per Kuchcha
bigha. The Supreme Court in a recent
authority reported in Bala Krishanan Vs.
M.Konar AIR 2006 SC 1458 has held that
only so much portion of the property must
be sold which is sufficient to satisfy the
decree and it is not just a discretion but
obligation on court. Sale held without
examining this aspect is illegal (para 10).
In the said case, objections filed after ten
years of confirmation of sale were
directed by the High Court to be treated
objections
under section 47 C.P.C.
Supreme Court approved the veiw of the
High Court. In the said case also five
acres of land had been sold for Rs.4000/-,
which was termed as paltry sum by the
Supreme Court. It has been held by the
full benches of Rajasthan and Patna High
Courts in Phool Chand and another Vs.
Badri Prasad AIR 1953 Raj. 51 (FB) and
Baleshwar Chaubey Versus R.R.P Singh
and others AIR 1947 Patna 461 that
objections against sale under section 47
C.P.C can be filed even after confirmation
of sale if applicant shows that owing to
fraud or for other reason he was ignorant
of the sale proceedings preliminary to
sale. Similarly it has been held by this
court
in
Firm
Harvilas
Rai,
Deokinandan, Ranikhet and another VS.
Lucknow Resin Factory and others, 1981
ALJ 464 that if the sale is void ab initio
then objections regarding illegality may
be made even after sale is confirmed.

14. Accordingly I am of the view
that the order passed by the revisional
court is patently erroneous in law and
without jurisdiction.

15. Writ petition is therefore
allowed. Judgment and order passed by
the revisional court dated 25.7.1987 is setaside. Judgment and order passed by the
trial court dated 15.5.1981 setting aside
the auction sale is confirmed.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2006

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 27432 of 2004

Kantu

...Petitioner/Defendant
Versus
Musaram & others ...Respondent/ Plaintiff

Counsel for the Petitioner:
Sri J.P.S. Chauhan

Counsel for the Respondents:
Sri Shashi Kant Shukla

Code of Civil Procedure-as amended by
Act No. 22 of 2002-Amendment in Plaintafter 7 years when issues framed and
Trail Commenced-no reasons disclosed
for not taking this plea as earliest-when
suit instituted-once trail commenced it
should not be delayed-amendment-heldnot justified.

Held: Para 8

In
the
present
case,
it
has
been
specifically argued by the petitioner and
not disputed by the respondent that the
trial of the suit had commenced at the
time
of
filing
of
the
amendment
application and as such the proviso to
Rule 17 would be attracted and in the
absence
of
the
plaintiff-respondent
having been able to show that in spite of
due diligence, he could not have raised
the issue involved in the amendment
before the commencement of the trial,
allowing of the amendment application
would not be justified in law.
46 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Case law discussed:
2006 ACJ 989 distinguished.

(Delivered by Hon 'ble Vineet Saran. J.)

1.

Plaintiff-respondent
no.
1Musaram filed a Civil Suit No. 499 of
1996 against the petitioner (who is his
real brother) with a prayer for grant of
permanent
injunction
against
the
petitioner (defendant) from interfering in
the possession of the plaintiff (respondent
no. 1). The written statement of the
petitioner-defendant was filed, issues
were framed and evidence of the plaintiff
was closed and a date was fixed for
evidence of the defendant and the
witnesses of the defendant were to be
cross-examined and it was at this stage
that on 28.8.2003 the plaintiff-respondent
no. 1 filed an application under Order VI
Rule 17 of the Code of Civil Procedure
seeking amendment of adding the relief
for partition of the property in question
and also for a declaration of his 3/4th share
in the property in dispute. The said
application of the defendant-respondent
no. 1 was allowed by the trial court on
20.9.2003. Challenging the said orders,
the petitioner filed Civil Revision No. 52
of 2003 before the District Judge,
Saharanpur which has been dismissed on
12.5.2004. Aggrieved by the aforesaid
orders, the petitioner has filed this writ
petition.

2. I have heard Sri J.P.S. Chauhan,
learned
counsel
appearing
for
the
petitioner as well as Sri Shashi Kant
Shukla, learned counsel appearing for the
respondents.
Pleadings
have
been
exchanged and with the consent of the
learned counsel for the parties, this writ
petition is being disposed of at this stage.

3. It is not disputed between the
parties that the trial of the suit had
commenced at the time when the
application for amendment had been filed.
The courts below have allowed the
amendment application primarily on the
ground that "the courts should be
extremely liberal in granting the prayer
for amendment" and as such when the
amendment is being sought only in the
prayer of the plaint, the same would not
change the fundamental character of the
suit and thus the same should be allowed
and was accordingly allowed by the
courts below:

4. 'The submission of the learned
counsel for the petitioner is that it was
only after certain material facts were
disclosed in the written statement and the
evidence filed by the petitioner, that the
respondent no. 1 moved such application
for amendment, and in case if such
amendment is allowed, it could cause
grave hardship to the petitioner. It has
further been submitted that the said
amendment application has been filed
after seven years of the filing of the suit
and also after coming into force of Act
No. 22 of 2002, whereby Rule 17 of
Order VI of the Code of Civil Procedure
has been amended, with effect from
1.7.2002.

5. The proviso to the amendment
Rule 17 clearly states that no application
for amendment shall be allowed after the
trial has commenced, unless the Court
comes to the conclusion that in spite of
due diligence, the party could not have
raised
the
matter
before
the
commencement of the trial. The word
used in the said proviso is "shall" and not
"may" and as such it was obligatory for
the court below to first come to the
1 All] Triyogi Nath V. Addl. District Judge and another
47
conclusion that in spite of due diligence,
the plaintiff could not have filed the
amendment
application
before
the
commencement of the trial. A perusal of
the application seeking amendment goes
to show that there is no reason whatsoever
disclosed by the plaintiff for not having
added such a prayer at the time of filing
of the suit or having got the same
amended prior to the commencement of
the trial. The purpose of the said proviso
is that the trial of the suits should not be
delayed and once the trial commences, it
should be concluded expeditiously, unless
for some specific and valid reason the
amendment
application
is
to
be
entertained.

6. The submission of the learned
counsel for the petitioner has force that
the situation with regard to the property
remained the same at the time of filing of
the suit and when the amendment
application was filed, and in case if the
respondent had so desired, he could have
made the prayers sought by means of the
amendment, at the time of filing the suit
itself, and by adding it subsequently after
7 years of the filing of the suit, and after
the issues had been framed and evidence
was going on, the interest of the
petitioner-defendant shall be prejudiced.

7.

Learned
counsel
for
the
respondent has relied upon a decision of
the Apex Court rendered in the case of
Raiesh Kumar Aggarwal Vs. K.K. Modi
2006 All.C.J. 989 wherein it has been
held that an amendment which does not
change the basic structure of the suit,
should be permitted, specially when the
party can file an independent suit for the
same relief. The facts of the said case
were different as the proviso clause of
Rule 17 of Order VI C.P.C. was not
attracted in the said case.

8. In the present case, it has
been specifically argued by the petitioner
and not disputed by the respondent that
the trial of the suit had commenced at the
time
of
filing
of
the
amendment
application and as such the proviso to
Rule 17 would be attracted and in the
absence of the plaintiff-respondent having
been able to show that in spite of due
diligence, he could not have raised the
issue involved in the amendment before
the commencement of the trial, allowing
of the amendment application would not
be justified in law.

9. As such the orders impugned in
this writ petition are liable to be set aside.

10. This writ petition succeeds and
is allowed. The orders dated 12.5.2004
passed by the Additional District Judge,
Court No. 5, Saharanpur and dated
20.9.2003 passed by the Civil Judge
(Junior Division), Hawali, Saharanpur are
quashed. No order as to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Application No. 206 of 2006

Triyugi Nath ...Defendant/Applicant
Versus.
Additional District Judge, and another

 ...Plaintiff/ Opp.Parties

Counsel for the Applicant:
Sri Ashish Srivastava