Madhya Pradesh High Court
Smt.Gunjan Chatuvedi vs Madhya Pradesh Criket ... on 8 December, 2021
Author: Satish Kumar Sharma
1
HIGH COURT OF MADHYA PRADESH
M.P. 2418/2019
(Smt. Gunjan Chaturvedi Vs. M.P. Cricket Association
and Ors.)
Gwalior dated 08.12.2021
Shri Harish Dixit, learned counsel for the petitioner.
Shri Anmol Khedkar, Advocate for the respondents.
This petition has been filed against the order dated
11/04/2019 passed in Civil Suit No. 70-A/2015 by 14 th
Additional District Judge, Gwalior, whereby, application
filed by the petitioner/plaintiff 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.
Learned counsel for the petitioner submits that the
plaintiff/petitioner has filed a civil suit for declaration and
injunction in respect of the ancestral property. The
defendants in their written statement came with a plea that
they are in possession of the disputed property and the
suit is not maintainable as per the provisions of section
34 of Specific Relief Act for want of relief for
possession. In view of this legal objection, the plaintiff
has filed an application for amendment in the plaint
seeking relief for possession. The proposed amendment is
necessary for proper adjudication of the controversy
between the parties. The objection of due diligence
should not be allowed to come in the way of such
necessary amendment rather its necessity should prevail.
The trial court has dismissed the application on technical
HIGH COURT OF MADHYA PRADESH
M.P. 2418/2019
grounds. The petition deserves to be allowed. In support
of his contentions learned counsel for the petitioner has placed
reliance on the judgments of the Supreme Court delivered in
the case of Kalyan Singh vs. Vakil Singh and Ors. reported
in AIR 1990 MP 295 & in the case of Gurbaksh Singh and
Ors. vs. Buta Singh and Anr. passed in Civil Appeal No.
4568/2018 vide judgment dated 27/04/2018 and also the
judgments delivered by this Court in W.P. No. 4608/2017
vide order dated 14/08/2019 (Kamlesh Bhanvsar vs. Smt.
Ashabai), M.P. No. 6274/2019 vide order dated 19/02/2020
(Rajkumar alias Durgaprasad vs. Tarachand Sahu and
Ors.) and the in the case of Sainik Grih Sehkari Samiti,
Jabalpur vs. M.P. Rajya Sehkari Awas Sangh Maryadit
reported in 2019 1) MPLJ 571.
Learned counsel for the respondents submits that
the trial of the suit has been concluded. The matter is
fixed for final arguments. The plaintiff was well aware of
the pleadings of the defendants from 21/12/2016. The
amendment application has been filed only to fill up the
lacunae in the case without any specific averments
regarding possession of the suit property. If such an
amendment is allowed, the nature of the suit will be
changed. The trial will commence again which since
stands concluded. The case of the defendants will be
prejudiced as their defence has already been opened. The
trial Court has rightly dismissed the application. The
impugned order does not call for any interference by this
HIGH COURT OF MADHYA PRADESH
M.P. 2418/2019
Court. The petition deserves to be dismissed. In support of his
contentions learned counsel for the respondents has placed
reliance on the judgments of the Supreme Court delivered in
the cases of M. Revanna Anjanamma (Dead) by Lrs and
Ors. reported in 2019 AIR (SC) 940 & Biraji @ Brijraji &
Anr. vs. Surya Pratap & Ors. reported in 2020 AIR (SC)
5483 & also on the judgment of this Court delivered in the
case of Vijay Bahadur Singh vs. Rameshwar & Ors.
reported in 2014 (1) MPLJ 680.
Having heard learned counsel for both the sides and on
perusal of the material available on record, it is an undisputed
position in this case that the suit between the parties is at the
stage of final arguments. The trial has already been concluded
and the application for amendment has been filed at final
stage. In such a situation, proviso to order VI Rule 17 of
CPC is relevant for considering the permission sought for
amendment in the pleadings, which is reproduced herein
below :-
"Order VI Rule 17 Code of Civil Procedure :
17. Amendment of pleadings :-------
Provided that no application for amendment shall
be 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 trial."
Undisputedly, the plaintiff has filed a suit for
declaration and permanent injunction, in which, it has been
HIGH COURT OF MADHYA PRADESH
M.P. 2418/2019
pleaded that the plaintiff is in possession of the disputed
property. The respondents had filed their written statement on
21/12/2016 with averments that the disputed property is in
their possession and they have raised construction over it.
Obviously, the plaintiff / petitioner was well aware of the
pleadings of the defendants from 21/12/2016. After framing of
the issues evidence has also been led by both the sides. In
such a situation, it is clear that the petitioner has not remained
due diligent as required under the proviso to Order VI Rule 17
of CPC and accordingly she is not entitled to amend her
pleadings.
The learned trial Court while dismissing the application
has also rightly noted the lapse on the part of the plaintiff that
once she initially pleaded that the suit property is in her
possession then in the proposed amendment she was required
to plead that how and when the defendants dispossessed the
plaintiff and taken over the possession of the suit property.
It is also relevant to note that if at the last stage of the
suit, such amendment is allowed, it would amount to permit
the party to fill up its lacunae and to give premium to such
party for its negligence. Further such amendment will result in
de-novo trial. It would also be prejudicial particularly to the
defendants.
In the judgments cited by the petitioner, the amendment
has been allowed in the peculiar circumstances of the given
cases, but in none of the case, the amendment was sought at
last stage of the trial with regard to the facts which were
already in the knowledge of the concerned party. Thus, the
HIGH COURT OF MADHYA PRADESH
M.P. 2418/2019
facts and circumstances of those cases are quite different from
this case. Hence, the judgments cited by the petitioner are not
applicable to this case. On the other hand, in the judgments
cited by the respondents, the application for amendment filed
by the negligent party was dismissed in similar circumstances.
In view of the above and for the reasons stated, this
Court is of the considered opinion that the learned trial Court
has not committed any illegality in dismissing the application
for amendment of the petitioner. No interference is called for
in the impugned order. Resultantly, the instant petition is
dismissed.
(Satish Kumar Sharma)
Judge
Durgekar*
SANJAY
NAMDEORAO
DURGEKAR
2021.12.09
17:33:53
+05'30'
