Madhya Pradesh High Court
Yaadram Shivhare vs Deependra Kumar Tamotiya on 10 January, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
MISC. PETITION No. 3212 of 2023
PIYUSH BHARGAVA
Versus
BHARAT BHUSHAN BHARGAVA (SINCE DECEASED)
THROUGH LRS AND OTHERS AND OTHERS
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Appearance:
Shri Sanjay Kumar Dwivedi - Advocate and Shri Somyadeep
Dwivedi - Advocoate for the petitioner.
Shri Praveen Surange - Advocate for the respondent No.3.
Shri Siddharth Sharma - Advocate for the respondent No.4.
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Reserved on : 17/12/2024
Delivered on : 10/01/2025
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This petition having been heard and reserved for orders,
comiing on for pronouncement this day, the Hon'ble Shri Justice
Milind Ramesh Phadke pronounced/passed the following:
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ORDER
The instant petition under Article 227 of the Constitution of India is directed against the order dated 02.03.2023 passed by IX Additional District Judge, Gwalior in Civil Suit No.RCSA/445/2016, whereby an application preferred by respondent/defendant No.3 under Order 6 Rule 17 read with Section 151 of CPC for amendment in the written statement was allowed holding it to be a consequential 2 amendment.
2. The aforesaid order has been assailed on the ground that the amendment was allowed by the Trial Court ignoring the fact that there is no written statement filed on behalf of respondent/defendant No.3 and the amendment sought was with regard to written statement filed by defendant No.1 and was not verified independently by respondent/defendant No.3, though he had adopted the said written statement and in absence of such verification there cannot be said to be a written statement in the eyes of law on behalf of respondent/defendant No.3, which in turn would mean that there are no pleadings to which amendment can be made.
3. Short facts leading to the present controversy are that the petitioner/plaintiff had filed a suit for declaration, partition and injunction against the present respondents and the deceased respondents. On 10.12.2016 written statement was filed by respondent/defendant No.1 (now deceased) and the pleadings raised in the plaint were denied. Defendant no. 3, 4 and 5 had not filed any separate written statement except for adopting the written statement filed by defendant No.1. A separate written statement was filed by defendant No.2, wherein, she had supported the pleadings raised by the plaintiff.
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4. On 29.08.2017 an application for amendment of the plaint filed by the petitioner/plaintiff was filed after death of his mother Smt. Suman Bhargava. A reply dated 20.11.2017 to the application was tendered by the defendant No.1 Late Bharat Bhushan Bhargava and defendant No.3. To traverse the pleadings of the defendants in their replies, another application under Order 6 Rule 17 of CPC dated 11.01.2023 was preferred by the petitioner/plaintiff . The said application was also replied by the respondent/defendant No.3 on 19.01.2023.
5. The Trial Court decided these applications vide order dated 02.02.2023 and the application 29.08.2017 preferred by the petitioner/plaintiff was rejected, however, the subsequent application dated 11.01.2023 was partially allowed. The amendment prayed in para 1 and 2 of the said application was rejected but the amendments proposed as per para 13(B) and 24 (A )and (B) to the plaint pertaining to the litigation pending between the parties before forum were allowed.
6. Subsequently, an application dated 10.02.2023 under Order 6 Rule 17 CPC was filed by the defendant No.3, wherein consequential and certain independent amendments in the written statement were proposed therein. The said application was opposed by the present 4 petitioner/plaintiff alleging that since defendant No.3 had not filed any separate written statement but has adopted written statement filed by the defendant No.1, without complying with the requirements of verification, which is necessary for proper adoption as per CPC the said amendment should not be allowed.
7. Learned Trial Court allowed the said application subject to payment of cost of Rs.200/- and while allowing the said application it had recorded a finding that amendments proposed in the written statement by defendant No.3 are related to the subject matter of the suit and should be permitted to be made despite being belated but as it had ignored the legal position of law as regards adoption of written statement, aggrieved by the aforesaid order the present petition has been filed.
8. Learned counsel for the petitioner while placing reliance in the matter of Babulal Agarwal Vs. Smt. Jyoti Shrivastava reported in AIR (2000)Madhya Pradesh 83; had argued before this Court that the Trial Court has materially erred in allowing the amendment application without considering the fact that there is no written statement of defendant no.3 in existence, as defendant No.3 has only adopted the written statement of defendant no.1 and the said written statement could only be said to be adopted if the pleadings in the same 5 are independently verified by the adoptee and in absence of such verification, there is no written statement in the eyes of law, which in turn would mean that the there are no pleadings to which an amendment can be made and since the Trial Court has exercised its jurisdiction with material irregularity by allowing the application without adverting to this objection of non existence of written statement of defendant No.3, the impugned order is liable to be set aside.
9. Further referring to the judgment of the Hon'ble Apex Court in the matter of Gurdial Singh and Ors. Vs. Raj Kumar Aneja and Ors. reported in AIR (2002) SC 1003; it is argued that the impugned order has been passed without adverting correct position of law as regards the scope of consequential amendments, as introduction of fresh facts/pleas under garb of consequential amendments is impermissible in law and since defendanat No.3 has sought to incorporate fresh pleas by seeking amendment of para 3 of para wise reply and para 12 to 15 of the additional submissions made in the written statement of defendant no.1, such amendments under guise of consequential amendments being prohibited could not have been permitted. Thus, the impugned order suffers from perversity and illegality, thus, is liable to be set aside.
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10. Another ground of non appreciation of the grounds raised in the reply has been argued by the counsel for the petitioner and it has been submitted that the Trial Court has allowed the application on solitary ground that the proposed amendments are related to subject matter of the suit but there are no finding as regards necessity of amendment for proper adjudication of the case nor there is a reasoning for condoning delay in preferring the amendments, thus, the said order is without due application of mind and the scope of provisions of Order 6 Rule 17 CPC as delineated by the various Courts, thus the impugned order is liable to be set aside.
11. On the other hand, learned counsel for the respondents has argued that since the very order by which the application for adoption of written statement filed by the defendant No.1 preferred on behalf of defendant No.3 was allowed and was never challenged by the petitioner/plaintiff, now, at this juncture, he is precluded from agitating this fact that there is no written statement filed on behalf of defendant No.3 on record available, therefore, the consequential amendment, which has been allowed by the learned trial Court to be incorporated in written statement is bad in law and is not correct.
12. While referring to the judgment of Apex Court in the matter of Vidyawati Gupta & Ors vs Bhakti Hari Nayak & Ors reported in 7 (2006)02 SCC 777 and in the matter of Akshay Mehta & ors. Vs. Smt. Usha Datta passed by Delhi High Court in CS(OS) 2/2007 dated 05.12.2017; learned counsel had argued that the contention of the petitioner that the written statement filed on behalf of defendant No.1 (since deceased), adopted by defendant No.3 without verification is no written statement in the eyes of law, as it doesn't contain any verification by defendant No.3 is not sustainable, as though verification is mandated under Order 17 Rule 15 CPC, however, lack of verification is a mere irregularity which can be cured and lack of verification does not invalidate or efface the documents from the records of the case. It was further argued that if the pleadings are not verified, it does not seize to be a pleading but is merely an irregularity and irregularity can be cured at any later point of time. It was further argued that lack of verification cannot be lead to conclusion that the same is not a written statement in the eyes of law and thereby permit the applicant to file a fresh written statement.
13. Learned counsel for the respondents had further argued that the intention of the legislature in bringing about the various amendments in the Code with effect from 1st July, 2002 were aimed at eliminating the procedural delays in the disposal of civil matters. The amendments effected to Section 26, Order IV and Order VI Rule 15, 8 are also geared to achieve such object, but being procedural in nature, they are directory in nature and non-compliance thereof would not automatically render the pleadings non-est and a stand that written statement in absence of any verification would be no written statement in the eyes of lay would be two pedantic and would be contrary to accepted principles involving interpretation of statutes. On the aforesaid premise, learned counsel for the respondents had argued that the petition has no force and, therefore, is liable to be dismissed.
14. Heard learned counsel for the parties and perused the record.
15. Order 6 Rule 1 of CPC defines pleading and mean a plaint or a written statement. Order 6 Rule 2(1) of CPC states that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.
16. Order 8 Rule 2 CPC provides that new facts must specifically be pleaded by the defendants in his pleadings to show that the suit is not maintainable or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, 9 limitation, release, payment, performance, or facts showing illegality.
17. Further Order 8 Rule 3 CPC speaks of a denial in the written statement to be specific and further lays down that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. In the aforesaid context the provisions of Order 6 Rule 15 CPC assumes importance, which deals with verification of pleadings. For reference Order 6 Rule 15 CPC is quoted herein below:-
"15. Verification of pleadings.
(1) Save as otherwise provided by any law for the time being in force, every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
(4) The person verifying the pleading shal also furnish an affidavit in support of his pleadings."
18. Order 6 Rule 15(1) specifically provides that every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the 10 Court to be acquainted with the facts of the case.
19. Thus, a party, who is specifically denying the allegations of facts has to verify such pleadings and not only the said party is to verify the pleadings but is also required to furnish an affidavit in support of his pleadings.
20. Herein case, admittedly the defendant No.3 had not filed a separate written statement but had adopted the written statement filed by the defendant No.1(since deceased). Admittedly, defendant No.1 (since deceased) is father of the plaintiff and defendant No.3. It is not the case that defendant No.3 had after the death of his father had been arrayed as party to the suit as a legal representative. Defendant No.3 was a party defendant to the suit since the beginning against whom an independent right has been claimed by the petitioner/plaintiff.
21. Since the very written statement filed by defendant No.1 has not been verified by defendant No.3 nor any affidavit in support of such pleadings has been submitted as are required under the provisions of Order 6 Rule 15 CPC, in the light of judgment of Division Bench of this Court in the matter of Babulal Agarwal (Supra), the same cannot be said to be a written statement in the eyes of law so far as defendant No.3 is concerned. Thus, the impugned order cannot be said to be sustainable, is accordingly set aside.
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22. So far as judgment cited by the counsel for the respondents are concerned, this Court though is in full agreement with the view as expressed therein that Order 6 and Order 7 of the Code are procedural in nature and any omission in respect thereof will not render the pleadings invalid and that such defect or omission will not only be curable but will also date back to the presentation of the pleadings, but finds that the aforesaid analogy has been laid down in the context where at the time of presentation of the plaint or the written statement some defects were left by the parties, which were held to be curable and thus, was held that omission in respect to the defect would not render the plaint or written statement redundant or invalid.
23. But herein case the defect is not that of the original pleader but the defect is with regard to a person who has adopted the original pleadings, therefore, the analogy which has been laid down by the Apex Court as well as Delhi High Court cannot be come to the rescue of respondents.
24. Accordingly, the present petition is hereby allowed and disposed off.
Certified copy as per rules.
(MILIND RAMESH PHADKE) JUDGE neetu NEETU Digitally signed by NEETU SHASHANK DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH SHASH GWALIOR, 2.5.4.20=36b486bb0d381b950e435ec09 e066bc6b58cb947c1474b7dc349a1cf27 eaa2ce, postalCode=474001, st=Madhya Pradesh, ANK serialNumber=E60A9BBFC39E0EE500EA ADE1E0B3B8565CB3A7DC9F5CD048197 DF0FF3149AE58, cn=NEETU SHASHANK Date: 2025.01.10 18:57:38 +05'30'