Case Note & Summary
The petitioner, Girish Bhor, was the original defendant in Regular Civil Suit No. 176 of 2008 filed by the respondent, Ambadas Perne, in the Court of Civil Judge, Junior Division, Rahuri. The suit pertained to land disputes. Upon institution of the suit, the petitioner filed his written statement along with a counter claim on 05-07-2008. In the written statement and counter claim, the petitioner specifically reserved a right to amend the pleadings in the event a T.I.L.R. (Taluka Inspector of Land Records) was appointed and his report revealed encroachment by the plaintiff on the defendant's land. The respondent/plaintiff had himself filed an application Exhibit 7 dated 02-05-2008 seeking appointment of a T.I.L.R. as Court Commissioner under Order XXVI Rule 9 CPC for measurement of suit properties and fixing boundaries. The petitioner filed his reply at Exhibit 16 on 05-07-2008, reiterating that the Commissioner should mention any encroachment by the plaintiff. The T.I.L.R. was appointed by order dated 12-09-2008 and submitted his report on 16-07-2009 along with a map. Based on the Commissioner's report, the petitioner filed an application under Order VI Rule 17 CPC on 10-07-2014 seeking amendment of the written statement and counter claim to incorporate the encroachment findings. The trial court rejected the application by impugned order dated 10-07-2014, holding that the petitioner had not reserved any right to amend. The High Court, in the present writ petition, examined the pleadings and found that the reservation was clearly made in prayer clause 6-B of the written statement and counter claim. The Court held that the amendment was necessary for effective adjudication and that the trial court had erred in rejecting the application. The impugned order was set aside, and the amendment application was allowed. The trial court was directed to permit the petitioner to amend the written statement and counter claim within four weeks, and the respondent was granted liberty to file an additional written statement to the counter claim within four weeks thereafter. The suit was directed to be disposed of expeditiously.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Reservation of Right to Amend - The petitioner/defendant had reserved a right to amend the written statement and counter claim in the event a T.I.L.R. was appointed and its report revealed encroachment by the plaintiff. The trial court rejected the amendment application on the ground that the petitioner had not reserved such right. The High Court held that the reservation was clear from the pleadings and the amendment was necessary to incorporate the findings of the Commissioner's report. The impugned order was set aside and the amendment was allowed. (Paras 3-8) B) Civil Procedure - Court Commissioner - Order XXVI Rule 9 CPC - T.I.L.R. Report - The plaintiff himself had moved an application for appointment of a T.I.L.R. as Court Commissioner. The defendant in his reply sought that the Commissioner report any encroachment by the plaintiff. The Commissioner's report indicated encroachment. The High Court held that the amendment based on such report was essential for effective adjudication of the suit. (Paras 4-6)
Issue of Consideration
Whether the trial court erred in rejecting the petitioner's application under Order VI Rule 17 of the Code of Civil Procedure, 1908, seeking amendment of the written statement and counter claim based on the report of the Court Commissioner (T.I.L.R.).
Final Decision
The impugned order dated 10-07-2014 is set aside. The application for amendment under Order VI Rule 17 CPC is allowed. The petitioner is permitted to amend the written statement and counter claim within four weeks. The respondent may file an additional written statement to the counter claim within four weeks thereafter. The suit is directed to be disposed of expeditiously.
Law Points
- Amendment of pleadings
- Order VI Rule 17 CPC
- Court Commissioner's report
- Encroachment
- Counter claim
- Written statement
- Reservation of right to amend
- T.I.L.R. report
