Late Baijnath Vaishy S/O Shri ... vs Smt. Hemlata Dandotiya
2021 Latest Caselaw 939 MP

Citation : 2021 Latest Caselaw 939 MP
Judgement Date : 22 March, 2021

Madhya Pradesh High Court

Late Baijnath Vaishy S/O Shri ... vs Smt. Hemlata Dandotiya on 22 March, 2021

Author: Rajeev Kumar Shrivastava

                                 01                       M.P.792/2021

            HIGH COURT OF MADHYA PRADESH
                           MP.792/2021
         ( Late Baijnath Vaishy Vs. Smt. Hemlata & Ors.)

Gwalior, Dated:22.03.2021

      Shri B.S.Dhakad, learned counsel for the petitioner.

      This petition is directed against the order dated 01.02.2021

(Annexure P-1)passed by trial Court in RCSA No.87/2015, whereby

application of petitioner/defendant filed under Order 6 Rule 17 CPC

is dismissed by the Court below. The Court below has dismissed the

said application by holding that the proposed amendment is already

there in the written statement, therefore it is not necessary to allow

the application.

      Learned counsel for the petitioner/defendant contended that in

the light of orders passed in 2011 (4) MPLJ 188 (Pandit

Ramgopal Pujari Vs. Pandit Akhilesh Kumar and another),

(2017)8 SCC 567 (State of Bihar and others Vs. Modern Tent

House and Another) and 2017 (3) MPLJ 717 (Chakreshwari

Construction       Pvt.   Ltd. Vs.Manohar Lal),        the   proposed

amendment is liable to be allowed. It is further submitted that the

aforesaid application was moved for explaining the basic foundation

which is already existed in the written statement but the learned trial

Court illegally rejected the application.

      The factual matrix of the present case is that respondents No.

1 to 3 filed one civil suit against the petitioner for eviction and

recovery of rent on the ground of bonafide need of respondents No. 02 M.P.792/2021

2 & 3 for starting a showroom of electrical items. By the proposed

amendment, the petitioner wants to show that now the grounds of

section 12(1)(f) of M.P. Accommodation Control Act are not in

existence and he wants to amend the written statement accordingly.

It is further submitted that the petitioner/defendant wants to clarify

his defence with regard to para 3 of the plaint. It is further

submitted that since the averments of amendment application are

necessary for lawful adjudication of the matter, amendment cannot

be disallowed. As the proposed amendment is bonafide, hence

prayed to allow this petition.

I have heard learned counsel for the petitioner at length and

perused the available record.

From the available record it is apparent that earlier the

petitioner, who is defendant before the trial Court, had filed an

application under Order 6 Rule 17 CPC, which was allowed by the

trial Court on 2.11.2019. Thereafter, the petitioner has again filed

the instant application before the trial Court under Order 6 Rule 17

C.P.C. The case is pending at plaintiff's evidence stage.

Proviso to Order 6 Rule 17 CPC reads as under:-

"17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due 03 M.P.792/2021

diligence, the party could not have raised the matter before the commencement of trial."

In the year 2002, the above quoted proviso is inserted in

Order 6 Rule 17 CPC. The proviso makes it clear that the party

seeking amendment must establish due diligence. The court can

exercise its jurisdiction to entertain the amendment application only

when due diligence is shown. The judgments cited by the

petitioner/defendant are not on the effect of proviso to Order 6 Rule

17 CPC. Thus, the said judgments are not relevant in the present

matter.

Therefore, in the opinion of this Court, in absence of showing

due diligence, the application for amendment was not tenable. The

court below has not committed any jurisdictional error, nor there