Madhya Pradesh High Court
Vishnu Agarwal vs Smt. Shashi Jain (Kothari) on 6 December, 2021
Author: Satish Kumar Sharma
1
HIGH COURT OF MADHYA PRADESH
M.P. 4301/2021
(Vishnu Agarwal & Anr. Vs. Smt. Shashi and Anr.)
Gwalior dated 06.12.2021
Shri N.K. Gupta, learned senior counsel with Shri R.S.
Gupta, Advocate for the petitioners.
Shri S.L. Gupta, learned counsel for the respondents.
This petition has been filed against the order dated
01/11/2021 passed in case No. 92-A/2015 RCSA by 4th
District Judge, Gwalior, whereby, application filed by the
petitioners/plaintiffs under Order VI Rule 17 of CPC for
amendment in the plaint has been dismissed.
Heard learned counsel for both the sides and perused
the material available on record.
Shri N.K. Gupta, learned senior counsel appearing on
behalf of petitioners/plaintiffs submits that
petitioners/plaintiffs have filed an application under Order VI
Rule 17 of CPC before framing of the issues only to bring
subsequent event on record. The amendment sought by the
plaintiffs is necessary for proper and effective adjudication of
the controversy between the parties. At the time of
consideration of the amendment application, merit of the
amendment is not required to be seen. The objection with
regard to maintainability of the suit may be taken after
amendment, but the amendment in the plaint cannot be
disallowed on the premise that such amendment would give
rise to the objection of maintainability of the suit. Learned
trial Court has dismissed the application of the
petitioners/plaintiffs holding that the proposed amendment
would hit by res-judicata or provision of Order 2 Rule 2 of
CPC, etc. which is not permissible under law. In support of his
HIGH COURT OF MADHYA PRADESH
M.P. 4301/2021
contentions, learned senior counsel has placed reliance on the
judgment of this Court passed in the case of Shri
Vishwakarma Bhagwan (Methil) and Ors. vs.
Laxminarayan reported in 2016 (III) MPWN 108.
Learned counsel for the respondents/defendants submits
that the proposed amendments are hit by the provisions as
mentioned by the trial court in its order which makes the suit
not maintainable. Thus, the learned trial Court has rightly
dismissed the application to save the time and expenses of the
parties. The petition deserves to be dismissed.
In view of aforesaid judgment, it is well settled legal
position that before framing of the issues or commencement
of the trial such proposed amendment should be allowed
which is necessary for proper adjudication of the controversy
between the parties. At the time of consideration of the
proposed amendment, the trial Court is not required to go into
the merits of the amendment. After amendment, it is open for
the Court to suo-moto consider the issue of maintainability of
the suit on such amendment or on application of the opposite
party filed for the purpose, but only on this count, the
proposed amendment cannot be declined.
On perusal of record of this case, it is found that the
plaintiffs have filed an application for amendment before
framing of issues and commencement of the trial. The
proposed amendments have been stated to be necessary and
relevant for proper adjudication of the controversy between
the parties. The trial Court was not supposed to go into the
merit of the amendment. It was open for the Court to suo-
HIGH COURT OF MADHYA PRADESH
M.P. 4301/2021
moto consider the maintainability of the suit on the basis of
amended pleadings or it could have considered the same on
filing of the application by the defendants for the purpose, but
the trial Court has declined the amendment on the premise
that such amendment would hit by res-judicata or provision
under Order 2 Rule 2 of CPC, etc. which is not permissible
under the law.
In view of above and for the reasons stated, it is clear
that the trial Court has committed illegality in dismissing the
application for amendment filed by the plaintiffs Hence, the
impugned order is not sustainable.
Consequently, the instant petition is allowed and the
impugned order of the trial Court is hereby quashed / set
aside. The application filed by the plaintiffs for amendment in
the pleadings is hereby allowed subject to payment of cost of
Rs. 2,000/- (Rs. Two Thousand Only) to the defendants. The
petitioners/plaintiffs shall file amended plaint within fourteen
(14) days from today. The defendants will be entitled to file
amended written statement with regard to the amended plaint,
if so advised.
(Satish Kumar Sharma)
Judge
Durgekar*
SANJAY
NAMDEORAO
DURGEKAR
2021.12.07
17:25:01 +05'30'
