Atmaram vs Smt. Tara
2021 Latest Caselaw 157 MP

1 MP-758-2021 The High Court Of Madhya Pradesh MP-758-2021 (ATMARAM Vs SMT. TARA AND OTHERS)

Jabalpur, Dated : 24-02-2021 Shri Jaideep Sirpurkar, learned counsel for the petitioner.

Heard on the question of admission.

This petition is filed under Article 227 of the Constitution of India questioning the penetrability of the order dated 03.02.2021 passed by the learned Seventh Additional Judge, Chhindwara in Civil Suit No.157A/2016

whereby the application submitted by the defendant/petitioner under Order 6 Rule 17 of the Code of Civil Procedure has been rejected.

Learned counsel for the petitioner submits that the application of the defendant/petitioner has been rejected by the trial Court mainly on the ground that the same has been filed belatedly and as per the proviso attached with the provision of Order 6 Rule 17 of CPC, there is no sufficient explanation given as to why such pleading could not be brought before commencement of trial. He further submits that the affidavits of the plaintiff's witnesses under Order 18 Rule 4 of CPC were already filed and therefore, the Court has opined that

the trial has already commenced. He also submits that the application has also been rejected on the ground that the defence of the defendant/petitioner is struck out pursuant to compliance of provisions of Section 13(6) of the M.P. Accommodation Control Act and therefore, no subsequent amendment in pleadings can be allowed.

Learned counsel for the petitioner further submits that so far as the delay part is concerned, the proviso attached with the provision of Order 6 of Rule 17 of CPC has already been held 'not mandatory' in several occasions but it is directive and, therefore, if reasonable explanation is given, the Court should consider it liberally and amendment can be allowed even after the commencement of trial. He further submits that the view of the Court below rejecting the application on the ground that the defence has already been struck out and therefore, no further amendment in the pleadings can be 2 MP-758-2021 allowed, is contrary to law laid down by the Division Bench of this Court in case of Premdas Vs. Laxmi Narayan Pande reported in 1964 MPLJ 190 and also in view of the subsequent judgment i.e. Kewal Kumar Sharma Vs. Satish Chandra Gothi and another reported in 1991 JLJ 86. He also submits that the Division Bench has very clearly laid down that even after

striking out the defence if the defendant denying the arrears or claiming adjustment, he can properly contest that issue despite striking out of his defence. The counsel for the petitioner submits that in view of the aforesaid, the order passed by the trial Court is contrary to law and it is apparent that the Court below has exceeded its jurisdiction, therefore, the said order is liable to be set aside.

After considering the submissions made by the learned counsel for the petitioner and perusal of record, it is clear from the application of amendment that only amendment in respect of the arrears of rent is being sought by the petitioner, however, the arrears of rent can be claimed prior to preceding period of three years from the date of filing the suit, but not prior to that. As such, the claim regarding arrears of rent prior to the said period is time barred and no decree can be granted. The other part of amendment does not relate to the rent. The Court below rightly considered this aspect and observed in its order that the pleading regarding arrears of rent which is sought to be brought by way of amendment, is contrary to legal issue and no pleading is required to be made in that regard because the defendant/petitioner is still in a position to contest the matter and to cross-examine the witnesses of the plaintiff and therefore, such pleading after striking out his defence is not permitted to be made in the written statement.

The question regarding quantum of rent is not raised in the amendment and as such, the view taken by the Division Bench in the cases relied upon by the petitioner does not help him. The rejection of application by the trial Court, therefore, does not suffer from any illegality. It can be held that the trial Court has not exceeded its jurisdiction or decided anything contrary to 3 MP-758-2021 law.

Thus, I do not find any substance in the petition, accordingly, it is dismissed.

(SANJAY DWIVEDI) JUDGE

ac/-

Digitally signed by ANIL CHOUDHARY Date: 2021.02.27 17:08:19 +05'30'