Manohar Lal Bajaj vs Motiram Bajaj
2021 Latest Caselaw 8664 MP

                                                                    1                                 MP-4549-2021
                                         The High Court Of Madhya Pradesh
                                                   MP No. 4549 of 2021
                                                  (MANOHAR LAL BAJAJ Vs MOTIRAM BAJAJ AND OTHERS)


                                 Jabalpur, Dated : 13-12-2021
                                       Shri Ashok Kumar Jain, counsel for the petitioner.

                                       The petitioner has filed this petition challenging the order dated
                                 2.12.2021 passed in Civil Suit No.3-A/2014 (RCSA 1700003/2019) whereby
                                 the application filed under Order 6 Rule 17 of CPC of the petitioner has been
                                 rejected.

                                       It is pointed out that the civil suit for declaration, permanent injunction
                                 and partition against the respondents has been filed on the ground that late

Shri Laxmandas Bajaj who was exclusive owner of the property and after his death the property has inherited by all the legal heirs. It was alleged that the property has remained an undivided property, therefore, partition was sought by the petitioner against all the respondents. After filing of the written statement the issues has been framed in the matter but before recording of evidence an application was filed seeking amendment to certain paragraphs in the plaint on 1.12.2021. No reply was filed by the respondents. By way of

amendment the plaintiff wants to incorporate that widow of late Laxman Bajaj were only the joint owner of the property and she did not have the vested right under law on the whole property or even portion of the same but she had executed a Will in favour of the respondent No.1 and in pursuance to the same the property was transferred in favour of respondents No.12 and 13, therefore, he wants to add the aforesaid paragraphs in the plaint.

The learned trial Court has considered the aforesaid aspects and has rejected the same vide impugned order saying that the plaintiff was well aware of this fact from the very beginning itself but has never made any efforts to incorporate the amendment at the earlier stage. The application under Order 7 Rule 11 was filed before the trial Court for dismissal of the plaint to which the reply was filed on 28.2.2008 wherein there is clear cut mentioned of the Will dated 28.11.2003, therefore, the aforesaid fact was very well in the knowledge Signature Not Verified SAN

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.12.15 14:45:59 IST 2 MP-4549-2021 of the plaintiff but no steps were taken by him to incorporate the amendment in the plaint itself. The trial has commenced as the issues are already being framed in the matter. In such circumstances, the plaintiff could not show the due diligence in filing an application by him.

Counsel for the petitioner has relied upon the judgment passed by the

Division Bench of this Court in the case of Gopal Chand Batham Vs. Babulal Batham (D) through Smt. Gora Bai and others, reported in 2018 (3) MPWN 64, wherein the framing of issues does not amount to commencement of trial was considered and the application was allowed, but the aforesaid judgment is of no help to the petitioner as no due diligence is being explained by him in filing an application.

The law is settled with respect to the aforesaid in the case of M. Revanna Vs. Anjanamma, (dead) and others reported in (2019) 4, SCC 332 wherein, the Hon'ble Supreme Court considering the proviso to Order 6 Rule 17 of CPC has held that the due diligence is required to the extent by the parties seeking amendment at a later stage. In the case of M.Revanna (supra) has held as under :-

-œThe proviso to Order 6 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 t o allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that i n spite o f d u e diligence, such an amendment could not have been sought earlier. An amendment cannot be claimed as a matter of right, and u n d er a l l circumstances. Though normally amendments are allowed in the pleadings to avoid

Signature Not Verified multiplicity of litigation, the Court needs to take into SAN

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.12.15 14:45:59 IST 3 MP-4549-2021 consideration whether th e 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.

(Para 7) In this case there is no explanation by Plaintiffs 1 to 5 as to why they did not file the application for amendment till the year 2008, given that the suit had been filed in 1993. They kept quiet without filing an application for amendment of the plaint within a reasonable time. By the time the application was filed the evidence of both parties had been recorded and the matter

was listed for final hearing before the trial court. The suit itself is for partition and separate possession. N ow, b y virtue o f the application for amendment of pleadings, Plaintiffs 1 to 5 want to plead that the partition had already taken place in the year 1972 and they are not interested to pursue the suit. Per contra, Plaintiff No. 6/Respondent No.1 herein wants to continue the proceedings in the suit for partition on the ground that the partition had not taken place at all.

(Para 8) In the circumstances, the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and 4 character o f t h e suit. I f the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiffs 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, t o grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff No. 6/Respondent No. 1 herein.

(Para 9) Signature Not Verified SAN

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.12.15 14:45:59 IST 4 MP-4549-2021 Even if the Order 6 Rule 17 is seen then the proviso to the same creates a rider and the plaintiffs are required to explain the due diligence in not filing the application at the relevant time.

In such circumstances, no illegality is committed by the learned trial Court in rejecting the application.

This petition under Article 227 of the Constitution of India wherein, this court is exercising supervisory jurisdiction and is required to seek the correctness of the order to the extent that what procedure, the trial court has adopted while deciding the application. The law with respect to supervisory jurisdiction Article 227 of the Constitution of India i s made clear by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shhankar Patil reported in (2010) 8 SCC 329, wherein certain guidelines have been issued by the Supreme Court, which are as under :-

"The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Interference is made to ensure that Courts below act within the bounds of their authority. Another view is possible, is not a ground for interference. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner."

In such circumstances and considering the judgments passed by the Hon'ble Supreme Court in the aforesaid cases, no relief can be extended to the petitioner. The order impugned is just and proper and does not call for any interference in the present writ petition.

Petition sans merits and is hereby rejected.

(VISHAL MISHRA) JUDGE Signature Not Verified SAN irfan

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.12.15 14:45:59 IST 5 MP-4549-2021

Signature Not Verified SAN

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.12.15 14:45:59 IST