Jagdish Prasad Gupta vs Vijay Kumar Bandil
2021 Latest Caselaw 252 MP

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                HIGH COURT OF MADHYA PRADESH
                                MP.993/2020
       (Jagdish Prasad Gupta Vs. Vijay Kumar Bandil & Others)

Gwalior, Dated : 26.02.2021

        Shri Anand Bharadwaj, learned counsel for the petitioner.

        Shri D.D. Bansal with Shri Abhishek Singh Bhadoria, learned

counsel for the respondent No.1,

With the consent of the parties, the matter is finally heard.

(1) The present petition is being filed challenging the order dated

28.01.2020 passed in Civil Suit No.193-A/2007 passed by Second

Civil Judge Class II, Morena, whereby the application filed under

Order 6 Rule 17 of CPC, 1908, has been rejected.

(2) It is submitted that the respondent No.1/plaintiff has filed a Civil

Suit for eviction of property in question on various grounds under

Sections 12(1)(a), 12(1)(b) and (f) of M.P. Accommodation Control

Act, 1961. A written statement has been filed by the

petitioner/defendant and he has denied the plaint allegations that the

plaintiff is having another vacant shop in Bhandil Market in Morena

and also took some special pleas in the written statement. That issues

were framed by the learned trial Court. The affidavit under Section

18(4) were filed by the plaintiff but the cross examination has not been

started yet. The petitioner/defendant No.1 has filed an application

under Order 6 Rule 17 read with Section 151 of the CPC on the ground

that shop No.3 shown in the map attached with the plaintiff was

vacated by the tenant Ramsewak and is in possession of the

HIGH COURT OF MADHYA PRADESH MP.993/2020 (Jagdish Prasad Gupta Vs. Vijay Kumar Bandil & Others)

respondent/plaintiff. Therefore, the bonafide requirement as shown is

fulfilled by vacation of the aforesaid shop in question. As the aforesaid

is the subsequent development after filing of the Suit therefore, the

same was sought to be incorporated by way of an application under

Order 6 Rule 17 CPC. It is pleaded in the application that the plaintiff

has recently obtained the vacant possession of the shop No.3 from the

tenant Ramsewak recently in a month. The aforesaid amendment was

necessary for the just and proper disposal of the case therefore, the

same was prayed to be incorporated.

(3) The reply to the application was filed denying the contents of the

application stating that the same is being filed just applying the delay

tactics. The affidavit under 18 (4) has already been filed in the matter.

It is further pointed out that the dimensions of the shop in question

which has been vacated and the present shop which is in possession of

the defendant are of different sizes. Therefore, it cannot be said that

the bonafide requirement is fulfilled. The plaintiff has not given any

exact date on which the possession of the vacant shop has been taken

place by the plaintiff and he has prayed for dismissal of the

application. He has further supported the judgment passed by the

learned trial Court stating that the defendant has not pointed out the

exact date on which the vacant possession of the shop in question has

handed over to the plaintiff. It is further argued that the petition is

HIGH COURT OF MADHYA PRADESH MP.993/2020 (Jagdish Prasad Gupta Vs. Vijay Kumar Bandil & Others)

under Article 227 of the Constitution of India having supervisory

jurisdiction and limited scope of interference. In such circumstances,

no relief can be extended to the petitioner. The order passed by the

learned trial Court rejecting the application is just and proper and does

not call for any interference in the present petition. Hence, prayed for

dismissal of the petition.

(4) Heard the learned counsel for the parties and perused the record.

(5) From the perusal of the record it is seen that apart from the

admitted facts that the plaint has been filed on the eviction of bonafide

under sections 12(1)(a)(f) for showing the bonafide requirement and a

written statement has been filed denying all the plaint averments. Prior

to starting the cross examination of the plaintiff the application has

been filed under Order 6 Rule 17 read with Section 151 of CPC

seeking amendment to the effect that the plaintiff has already got the

vacant possession of shop No.3 recently within a month from the

tenant Ramsewak, therefore, showing the need and bonafide

requirement is already over. The reply to the application was filed

denying all the averments and contending that the dimension of the

shop in question of which the vacant possession is handed over is

different and the shop is much smaller for which the present Civil Suit

has been filed. Counsel for the defendant has admitted the position

that the vacant possession of shop No.3 has been handed over to him.

HIGH COURT OF MADHYA PRADESH MP.993/2020 (Jagdish Prasad Gupta Vs. Vijay Kumar Bandil & Others)

It is further admitted position that the cross examination of plaintiff

witnesses is not yet been started. The law with respect to Order 6 Rule

17 CPC seeking amendment is required to be seen and it is par settled

in the case of Estralla Rubber Vs. Dass Estate (P) Ltd; reported in

(2001) Vol.8 SCC 97, wherein in it is held as under :-

"8. It is fairly settled in law that the amendment of pleading under Order 6, Rule 17 is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to certain conditions such as allowing the amendment should not result in injustice to the other side; normally a clear admission made conferring certain right on a plaintiff is not allowed to be withdrawn by way of amendment by a defendant resulting in prejudice to such a right of the plaintiff, depending on the facts and circumstances of a given case. In certain situations, a time-barred claim cannot be allowed to be raised by proposing an amendment to taker away the valuable accrued right of a party. However, mere delay in making an amendment application itself is not enough to refuse amendment, as the delay can be compensated in terms of money. Amendment is to be allowed when it does not cause serious prejudice to the opposite side."

(6) Hon'ble Supreme Court in the case of A.K. Gupta and Sons Vs.

Dhamodar Valley Corporation, reported in A.I.R. 1967 SC 96 has

held as under:-

"8. The principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes (Cropper vs. Smit, (1984) 26 Ch D 700 (710-711)

HIGH COURT OF MADHYA PRADESH MP.993/2020 (Jagdish Prasad Gupta Vs. Vijay Kumar Bandil & Others)

and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended."

(7) From the aforesaid, it is apparently clear that the amendment can

be incorporated at any stage of the proceedings subject to the condition

that it may not change in the nature of the suit and the relief claimed by

the plaintiffs. In the present case only amendment which sought to bes

subsequent development which have taken place as the plaintiff has

obtained a vacant possession of another shop in question. Thus, just to

establish the bonafide requirement is not available to the plaintiff any

more. The aforesaid amendment does not change the nature of the

Civil Suit. It is further seen from the application that the defendants

have mentioned that a vacant possession of the shop in question has

been handed over by the tenant Ramsewak within one month from the

date of filing of the application. Although the exact date of vacation

and handing over the possession has not been mentioned but a

reasonable time which is known to the defendant is mentioned in

paragraph 3 of the application. In such circumstances, the learned trial

Court was wrong in holding that no date was mentioned in the

application, therefore, the application was rejected.

(8) Considering the overall facts and circumstances of the case as

well as the judgment passed by the Hon'ble Supreme Court in the

HIGH COURT OF MADHYA PRADESH MP.993/2020 (Jagdish Prasad Gupta Vs. Vijay Kumar Bandil & Others)

aforementioned cases, the order passed by the learned trial Court is

clearly unsustainable and is hereby set aside. Application filed under

Order 6 Rule 17 CPC is allowed.

                                                    (Vishal Mishra)
mani/-                                                  Judge

SUBASRI
MANI
2021.03.02
10:49:23
-08'00'