Mahila Rekha Devi vs Munnalal
2021 Latest Caselaw 4076 MP

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                     THE HIGH COURT OF MADHYA PRADESH
                          M.P. 2494/2021
            (Mahila Rekha Devi and Anr. Vs. Munnalal and Others)


Gwalior, Dated : 09.08.2021

      Heard through videoconferencing.

      Shri S.K. Sharma, counsel for the petitioners.

      Heard on the question of admission.

      The present petition has been filed challenging the order dated

8.7.2021 passed by the learned trial Court whereby the application filed

under Order 6 Rule 17 making amendment in the written statement has

been denied.

      It is argued that the respondent No.1 has filed a civil suit for

declaration and injunction with respect to part of the property as

mentioned in the civil suit. The petitioners have participated in the civil

suit proceedings which has been finally decided by the learned trial

court. The civil suit was decreed in favour of the plaintiff on 30.04.2007

and appeal was preferred against the same along with an application for

amendment. The amendment application was allowed by the appellate

Court and the matter was remanded back to the trial Court permitting the

plaintiff for consequential amendment in the case. In pursuance to the

order passed by the appellate Court the trial Court has further considered

and decided the matter on 7.9.2016 after providing the consequential

amendment to the plaintiff as well as the opportunity of leading evidence

to the rival parties. The appeal was filed against the judgment and decree

dated 7.9.2016 and the same is pending consideration. During the

pendency of the appeal an application has been filed seeking amendment

THE HIGH COURT OF MADHYA PRADESH M.P. 2494/2021 (Mahila Rekha Devi and Anr. Vs. Munnalal and Others)

in the written statement to the effect that survey number as mentioned in

the application are not of the ownership of Baba Lokman and therefore,

the same should not have been incorporated for getting the right over by

the respondent No.1 and on getting the application response was

submitted by the respondent No.1 and opposed the application. It is

argued that the law with respect to filing of amendment application at

any stage is clear as has been held by the Hon'ble Supreme Court in the

case of Revajeetu Builders and Developers v. Narayanaswamy and

Sons and Others, (2009) 10 SCC 84. It is submitted that the learned trial

Court has wrongly rejected the application.

Heard the learned counsel for the petitioners and perused the

record.

From the perusal of the record it is seen that the suit for declaration

and injunction with respect to the property in dispute has been filed by

the plaintiff who is respondent No. 1 and in the civil suit the petitioners

have actively participated and have filed the written statement far back

on 7.7.2006. Thereafter, the civil suit was finally decided on 30.04.2007

which was put to challenge by filing an appeal and during the pendency

of the appeal an application for amendment was preferred. The learned

appellate court has considered the amendment application and allowed

the same and granting liberty to the plaintiff for consequential

amendments in the civil suit and remanded the matter back to the trial

Court for fresh consideration. Thereafter, the learned trial Court has

THE HIGH COURT OF MADHYA PRADESH M.P. 2494/2021 (Mahila Rekha Devi and Anr. Vs. Munnalal and Others)

again considered the order passed by the appellate Court and has decided

the civil suit initially permitting the consequential amendment and

thereafter taking evidence and the civil suit was again decided on

7.9.2016 against which an appeal was preferred and the same is pending

consideration. During the pendency of the appeal an application seeking

amendment in the written statement has been filed.

Law with respect to amendment in written statement is clear as has

been held by the Hon'ble Supreme Court in the case of J.Samuel & Ors

vs Gattu Mahesh & Ors passed in Civil Appeal No. 561/2012 that a

lenient view should have been taken in the matter because the

amendment in the written statement is not of such gravity as that of the

amendment in plaint. The written statement was filed on 07.07.2006 and

thereafter the civil suit was decided and the amendment application was

allowed and at the appellate stage, the matter was remanded back. Again

an application for amendment is filed without there being any

explanation for the due diligence in not incorporating such amendment at

the relevant time. The civil suit is pending consideration since the year

2016. While considering the applications for amendment the parties are

required to demonstrate their due diligence in the matter.

The Hon'ble Supreme Court in the case of M. Revanna vs.

Anjanamma (dead) by legal representatives, reported in (2019) 4

SCC 332 has held as under;

7.Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The

THE HIGH COURT OF MADHYA PRADESH M.P. 2494/2021 (Mahila Rekha Devi and Anr. Vs. Munnalal and Others)

proviso to Order VI Rule 17 of the CPC virtually prevents an application for amendment of pleadings from being 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 proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.

This is the petition under Article 227 of the Constitution of India

having a limited scope of jurisdiction. Only the procedural error as

committed by the trial Court and error of law is required to be observed.

The Hon'ble Supreme Court in the case of Shalini Shyam Shetty

Vs. Rajendra Shankar Patil (2010) 8 SCC 329 has held that the

following principles on the exercise of High Court's jurisdiction under

Article 227 of the Constitution may be formulated:

"(a) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.

(b) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(c). In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised."

Considering the overall facts and circumstances of the case and the

THE HIGH COURT OF MADHYA PRADESH M.P. 2494/2021 (Mahila Rekha Devi and Anr. Vs. Munnalal and Others)

judgments passed by the Hon'ble Supreme Court with respect to

amendments as well as the supervisory jurisdiction of this Court, the

order passed by the learned trial Court is a well reasoned and justified

order. No illegality has been committed by the learned trial Court in

rejecting the application under Order 6 Rule 17 of CPC. In such

circumstances, the petition sans merits and is accordingly dismissed.

(VISHAL MISHRA) JUDGE van

SMT VANDANA VERMA 2021.08.12 17:41:38 -07'00'