Mushter Sultana vs. Mahmood Ahmed Khan

Writ Petition No : 2702 / 2013

Smt. Mushter Sultana Vs. Mahmood Ahmad Khan

27.02.2013.

Shri A.K. Jain for the petitioner.

Shri Mukhtar Ahmed for the respondent.

Challenging an order-dated 14.2.2013 passed by the learned trial court rejecting an application filed by the petitioner seeking amendment of the plaint, this writ petition has been filed.

Petitioner is plaintiff and has filed the suit in question for declaration and permanent injunction and the claim is based on a registered sale-deed. Written statement was filed by the respondent alongwith a counter-claim. It is seen that as counsel for the petitioner did not attend the proceedings and did not effectively participate in the proceedings of the suit, the suit filed by the petitioner has been dismissed in default even before the stage of evidence and now the suit is proceeding for considering the counter-claim made by the respondent defendant. After the suit of the petitioner was dismissed after examination of the witnesses in the counter-claim, the Court proceeded exparte and an exparte judgment and decree was passed against the petitioner. Petitioner preferred an appeal against the judgment and decree before this Court, the appeal has been allowed and according to the petitioner the matter has been remanded back with a direction to afford the petitioner to lead evidence.

Petitioner after remand has filed an application for amendment under Order 6 Rule 17 CPC and as the same is rejected, petitioner is before this Court.

Shri A.K. Jain, learned counsel for the petitioner, argued that the petitioner has raised legal questions with regard to limitation and even if the amendment cannot be allowed due to the limited remand order passed by the High Court, the petitioner should be given liberty to raise the legal grounds and to that extent directions should be issued.

Writ Petition No : 2702 / 2013

Smt. Mushter Sultana Vs. Mahmood Ahmad Khan

Shri Mukhtar Ahmed, learned counsel for the respondent, refutes the aforesaid and argued that the only limited remand made is to permit the petitioner to cross-examine the witnesses and to examine his witnesses and as the right of the petitioner is already closed, the plaintiff cannot be permitted to amend the plaint. It is stated that in rejecting the application, the learned Court has not committed any error.

Having considered the rival contentions and the limited question for which the remand is ordered by this Court on 20.12.2012, in Writ Petition No. 20954/2012, I see no error in the order passed by the trial court rejecting the claim of the petitioner.

As far as the prayer made by Shri A.K. Jain for permitting the petitioner to raise the question of law and issuing a direction is this regard is concerned, I am not inclined to issue any such direction. If the petitioner has any right under law to raise any question of law, it is for the court below to take note of the same and proceed in the matter. For the said purpose, no direction of this Court is required.

Accordingly, in the facts and circumstances, finding no ground for interference, this petition is dismissed.

(RAJENDRA MENON) J U D G E

Aks/-