Shyam Sunder vs Smt.Radha Bai
2021 Latest Caselaw 9028 MP

                                                                   1                                   MP-4721-2021
                                          The High Court Of Madhya Pradesh
                                                    MP No. 4721 of 2021

(SHYAM SUNDER AND OTHERS Vs SMT.RADHA BAI AND OTHERS)

Jabalpur, Dated : 21-12-2021 Shri Avinash Zargar, learned counsel for the petitioners.

Heard on the question of admission.

This Miscellaneous Petition has been filed being aggrieved of order dated 09/12/2021 (Annexure-P/1) passed by learned 1st Civil Judge Class-I, Harda, Distt. Harda in RCS No.19A/2020 (Shyam Sunder and others Vs.

Shivnarayan and others) whereby an application under Section 6 Rule 17 of the Code of Civil Procedure, 1908 has been rejected by the trial Court.

Learned counsel for the petitioner submits that two suits were filed, one Civil Suit No.43A/1993 by Ramavatar seeking partition.

In M.A. No.1984/2006 (Shiv Narayan Vs. Ramautar and others) Coordinate Bench of this Court has observed that while deciding Second Appeal No.930/2006 it has not given any finding whatsoever about existence, genuineness and validity of the Will relied upon by legal representatives of original plaintiff in Civil Suit No.8A/1980. Parties may take their respective

stand in accordance with law in Civil Suit No.43A/1993 and trial Court shall consider and decide it in accordance with law as per merits of the case. It is submitted that in view of this judgment of Coordinate Bench dated 14/09/2017 passed in M.A. No.1984/2006 an application under Order 6 Rule 17 read with Section 151 of CPC as contained in Annexure-A/10 was filed on 25/11/2021 proposing an amendment that since late Sitaramji was having some problem with his vision and was not capable of hearing and understanding things, therefore, he was not capable of executing the Will. It is further mentioned that decree was passed by the Court in Civil Suit No.8A/1980 on 23/12/2002. Against this judgment First Appeal No.69A/2005 was filed which was accepted by the first appellate Court and the matter was remanded. Against this order of remand, Miscellaneous Appeal was filed before the High Court in which order was passed on 14/09/2017 and the Signature Not Verified SAN

Digitally signed by TULSA SINGH Date: 2021.12.22 18:38:33 IST 2 MP-4721-2021 Court has directed to decide the case in accordance with law, therefore, it will be necessary to decide Issue No.9 in accordance with law because in Civil Suit No.8A/1980 Issue No.9 was not decided finally.

Learned counsel for the petitioner reading from the judgment passed in Civil Suit No.8A/1990 submits that Issue No.9 before the trial Court in the

said suit is -Whether present plaintiffs are legal heirs of original plaintiff- Sitaram and, if yes, then whether they are entitled to any relief in the suit.

Shri Zargar, learned counsel for the petitioner, has placed reliance on the judgment of Supreme Court in the case of Rajesh Kumar Aggarwal and others Vs. K.K. Modi and others, AIR 2006 SC 1647, wherein it is held that Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just if such amendments are necessary for the purpose of determining the real question in controversy between the parties. It is held that object of the rule is that Courts should try the merits of the case that come before them and should consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided that it does not cause injustice or prejudice to the other side. Order 6 Rule 17 of CPC consists of two parts whereas first part is imperative and enjoining the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

Similarly reliance is placed on the judgment of Hon'ble Supreme Court in the case of Vidyabai and others Vs. Padmalatha and another, AIR 2009 SC 1433, wherein referring to the decision in Kailash Vs. Nanhku (2005) 4 SCC 480, Supreme Court held that in a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. Placing reliance on these judgments, it is submitted that amendment application should have been

Signature Not Verified allowed by the trial Court.

SAN

Digitally signed by TULSA SINGH Date: 2021.12.22 18:38:33 IST 3 MP-4721-2021 A perusal of the judgment dated 18/7/2005 passed in Civil Suit No.43A/1993 instituted on 10/06/1985, reveals that issue No.4 is to the effect whether defendants No.1 and 2 i.e. Shivnarayan and Ganga Kishan had received disputed property through Will dated 30/08/1982 executed by Sitaram and what will be impact of the Will on the interest of plaintiff.

Thus, it is evident that firstly similar issue is already available on record and secondly, present petitioners have not given any justification for filing an amendment application on 25/11/2021 when decision in the Miscellaneous Appeal No.1984/2006 was passed on 14/09/2017. No reason for delay in seeking amendment on the basis of the judgment of High Court dated 14/09/2017 has been given. There is no justification as to how issue No.9 in

Civil Suit No.8A/1980 can be tried in the present suit when High Court only observed that while deciding Second Appeal No.930/2006, it has not given any finding whatsoever about existence, genuineness and validity of the Will relied upon by the legal representatives of the original plaintiff of civil suit No.8A/1980 and parties may take their respective stand in accordance with law in Civil Suit No.43A/1993 and the trial Court shall consider and decide it in accordance with law as per merits of the said case. Therefore, it is evident that there is no direction of the High Court to decide Issue No.9 framed in Civil Suit No.8A/1980 in the present petition. There is already a issue in regard to the Will and, therefore, the reasoning giving by the trial Court that this application under Order 6 Rule 17 of CPC has been filed just to cause delay, cannot be said to be faulty. In fact, it is evident from the order itself that case was fixed for recording of evidence of the plaintiffs and in place of filing his evidence, application under Order 6 Rule 17 of CPC was filed so to gain time to produce evidence. This Court does not find any illegality in the impugned order calling for interference even when tested on the touchstone of the judgment of Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal (supra). In fact, Hon'ble Supreme Court has held that though

Signature Not Verified SAN second part of the order 6 Rule 17 of CPC is imperative and enjoins the

Digitally signed by TULSA SINGH Date: 2021.12.22 18:38:33 IST 4 MP-4721-2021 Court to allow all amendments, but this statement of law is further qualified with words "which are necessary for the purpose of determining the real question in controversy between the parties"

Thus, it is evident that all amendments cannot be allowed on the facts of the present case, there is no material calling for any interference in the impugned order in the supervisory jurisdiction of the High Court specially when even this Court is in the agreement with the findings recorded by the trial Court that application was merely filed to cause delay in a suit which is already pending since 1985 without assigning any reason for delay in filing amendment application after commencement of the trial.

The petition fails and is hereby dismissed.

(VIVEK AGARWAL) JUDGE

ts

Signature Not Verified SAN

Digitally signed by TULSA SINGH Date: 2021.12.22 18:38:33 IST