1 2025:CGHC:8407 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 85 of 2021 1. Dinanath Sharma S/o Late Shri Purushottam Sharma, Aged About 63 Years R/o House No. 14/154, The House Of Mr. L.K. Dwivedi, Gayatri Mandir Road, Beside Mahima Std Vinoba Nagar Bilaspur Tahsil And District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 2. Smt. Sarita Sharma W/o Dinanath Sharma Aged About 57 Years R/o House No. 14/154, The House Of Mr. L.K. Dwivedi, Gayatri Mandir Road, Beside Mahima Std Vinoba Nagar Bilaspur Tahsil And District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh ... Petitioner(s) versus 1. Anil Mudra S/o Vishnu Gopal Mudra, Business Property Dealer, Aged About 57 Years R/o Behind 16 Kholi House, Tikarapara Bilaspur Tahsil And District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 2. Vishnu Gopal Mudra S/o Late Ramkumar Mudra Business Property Dealer, Aged About 83 Years R/o Behind 16 Kholi House, Tikarapara Bilaspur Tahsil And District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 3. State Of M.P. Now, Chhattisgarh, Through Its Collector Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioners/Plaintiffs : Mr. Achyut Tiwari, Advocate For Respondents No. 1 & 2 : Mr. Anand Shukla, Advocate For State/Respondent No. 3 : Mr. Lav Sharma, Panel Lawyer Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 18. 02.2025 1. By way of this petition, the petitioners have sought the following relief(s):- “10.1 That, this Hon'ble Court may kindly be pleased to SIDDHANT TAMRAKAR Digitally signed by SIDDHANT TAMRAKAR Date: 2025.02.20 16:47:49 +0530 2 call the entire records of the case, from the Court below. 10.2 That this Hon'ble Court be kindly be pleased to set aside the order impugned, passed vide ANNEXURE P- 1,, vide Order 06.01.2021 passed by Hon'ble Ist Civil Judge Class II Bilaspur , (C.G.), presided by Satpreet Kaur Chhabra, in civil Suit No. 279-A/1996, thereby the two application submitted by the Plaintiffs herein the Petitioners under Order 6 Rule 17 & under Order 07 Rule 14(3) of the Code of Civil Procedure have been rejected, and further be pleased to direct the Court below to permit the Plaintiffs to incorporate the proposed amendment as sought by the plaintiffs herein the Petitioners, and further also be pleased to direct the Court below to take the additional documents filed by the Plaintiff, in the record of the case. 10.3 That any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may also be granted in the favour of the petitioners and against the Respondents.” 2. Mr. Achyut Tiwari, counsel appearing for the petitioners would submit that a suit was filed by the plaintiffs/petitioners for declaration of title and permanent injunction pertaining to survey No. 150/2Dh admeasuring 0.14 acres situated at Village Devrikhurd, Patwari Circle No. 24, Block Bilha, District Bilaspur inter alia on the ground that they purchased the property through a registered sale-deed and are in possession. 3. Learned counsel for the petitioners would submit that the Civil Suit was dismissed vide judgment and decree dated 10.04.2001. He would further submit that an appeal was preferred and the matter was remitted back to the learned trial Court with a direction to issue a Commission for demarcation of the suit property as there was an allegation with regard to encroachment over the suit land by the defendants. He would further submit that for the first time, the Commissioner submitted its report on 30.08.2006, but there was some error; therefore, the learned trial Court suo 3 moto exercised the power under Order 26 Rule 9 of CPC and appointed a Commissioner for demarcation of the suit property. He would also submit that demarcation was conducted wherein it was found that there was an encroachment over the suit property. It is contended that the subsequent demarcation report was submitted before the learned Court below on 02.03.2019. It is further contended that the Commissioner was examined before the learned Court below on 01.12.2020, and immediately thereafter on 02.01.2021, an application for amendment was moved. It is also contended that the plaintiffs sought relief of possession and mandatory injunction as there was encroachment over the suit property. It is stated that the application moved by the plaintiffs was rejected on the ground that the same was moved at a belated stage particularly when the case was set for final arguments. It is further stated that the denial of such relief would invite one more suit for possession; therefore, the learned Court below ought to have allowed the application. 4. On the other hand, Mr. Anand Shukla, counsel appearing for respondents No. 1 and 2 would oppose. He would submit that in the written statement, the defendants had categorically pleaded that they were in possession, but no steps were taken by the plaintiffs for amendment or seeking relief of possession. He would further submit that on 02.03.2019, the Commissioner submitted its report which was within the knowledge of the plaintiffs, but they failed to move the application for amendment. He also submitted that after examination of the Commissioner on 01.12.2020, the petitioners failed to move the application for amendment and later, it was moved on 02.01.2021, when the case was fixed for final arguments. It is also contended that the application for amendment was moved at a belated stage; therefore, the learned trial Court rightly rejected it. 4 5. Mr. Shukla would further argue that according to the proviso inserted to Order 6 Rule 17 of CPC, an application for amendment cannot be allowed 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 trial. In support thereof, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Vidyabai vs. Padmalatha, 2009 (2) SCC 409. 6. Mr. Lav Sharma, Panel Lawyer appearing for the State would support the order passed by the learned Court below. 7. I have heard learned counsel for the parties and perused the documents placed on record. 8. In the present case, initially, a suit was filed for declaration of title and permanent injunction. During the pendency of the Civil Suit, a demarcation was conducted. It is a case of the plaintiffs that the defendants have encroached over the entire suit land and the Civil Suit filed by the plaintiffs/petitioners was dismissed. The learned appellate Court remitted back the matter to decide it afresh after the appointment of the Commissioner. A Commissioner was appointed, who submitted its report on 02.03.2019 which categorically states that the defendants have encroached over the suit land. The Commissioner was examined on 01.12.2020 and the application for amendment was moved by the plaintiffs on 02.01.2021. In the application for amendment, the plaintiffs have sought relief of possession and mandatory injunction and facts in this regard were also pleaded. 9. The learned trial Court rejected the application only on the ground that the application was moved at a belated stage particularly when the case was 5 fixed for final arguments. 10. In the matter of Vidyabai (supra), the Hon’ble Supreme Court while dealing with the proviso to Order 6 Rule 17 of CPC held that the application for amendment should not be allowed after commencement of trial. In the present case, the application was moved almost after the completion of the trial, but sight cannot be lost to the fact that the matter was remitted back by the learned appellate Court with a direction to appoint Commissioner and that order was not challenged by the defendants and it attained finality. The learned trial Court appointed the Commissioner and a report was submitted on 02.03.2019. On 01.12.2020, the Commissioner was examined and cross-examined, and thereafter on 02.01.2021, the application for amendment was moved, whereby, the plaintiffs sought relief of possession and mandatory injunction. 11. The Hon’ble Supreme Court in the matter of Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and another reported in (2022) 16 SCC 1 in para 71.3, 71.3.1 and 71.3.2 held as under:- “71.3 The prayer for amendment is to be allowed : 71.3.1 If the amendment is required for effective and proper adjudication of the controversy between the parties, 71.3.2 To avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).” 12. Taking into consideration the fact that the rejection of the application for 6 amendment would invite one more suit by the plaintiffs seeking therein relief of possession; therefore, to avoid multiplicity of cases and for substantial justice, the learned trial Court ought to have allowed the said application. Consequently, the order passed by the learned trial Court dated 06.01.2021 is hereby set-aside. The application moved by the plaintiffs under Order 6 Rule 17 of CPC is allowed. 13. The plaintiffs are granted one week’s time to carry out necessary amendment before the learned Court below, and thereafter, the learned trial Court shall be at liberty to decide the matter on merits and no further adjournment shall be granted to either party. Sd/- (Rakesh Mohan Pandey) Judge $iddhant