Madhya Pradesh High Court
Smt. Alka Gadre vs Shailendra Verma on 25 October, 2021
Author: Rajeev Kumar Dubey
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH : RAJEEV KUMAR DUBEY, J
Miscellaneous Petition No.2595/2021
Smt. Alka Gadre
Vs.
Shailendra Verma
=================
Shri Avinash Zargar, counsel for the petitioner/plaintiff.
Shri Rohan Harne, counsel for the respondent/defendant.
==================================
ORDER
(Reserved on 21/10/2021
Delivered on 25/10/2021)
This petition has been filed under Article 227 of the Constitution of
India against the order dated 11.08.2021 passed by the Civil Judge, Class-II
Timarni, Distt. Harda in Civil Suit No. RCSA-10A/2018 whereby the
learned Civil Judge dismissed the application filed by the petitioner (plaintiff
of the case) under Order 6 Rule 17 read with section 151 of the Civil
Procedure Code ( hereinafter referred to as the C.P.C.) seeking amendment
in the plaint.
2. Brief facts of the case which are relevant for the disposal of the
present petition are that petitioner/plaintiff filed a civil suit RCSA 10A /
2018 before Civil Judge Class-II, Timarni, Distt. Harda for the eviction of
the respondent / defendant from the suit property and for the recovery of
arrears of rent. During the pendency of the suit, on 07/02/2020
petitioner/plaintiff filed an application under Order 6 Rule 17 read with
section 151 of C.P.C. averring that during the pendency of the suit, half
portion of the suit house has been sold by the plaintiff to Rahul Khore and
remaining half to Surendra Kumar by two registered sale deeds dated
18.06.2019. After that plaintiff has no interest left in the suit house. So she
wants to delete the prayer of eviction and continue the suit only for recovery
of arrears of rent, therefore she be permitted to amend the plaint accordingly.
The learned trial court rejected the plaintiff's application vide order dated
02/08/2021 observing that the boundaries of the property mentioned in the
sale deeds do not match with the suit property. So, it cannot be said that the
plaintiff has sold the suit property to another person by those sale deeds. On
that plaintiff executed rectification deeds and thereafter again filed an
application under Order 6 Rule 17 C.P.C. for permitting her to insert the
same amendment in the plaint. Learned trial court again rejected the
application vide order dated 11.08.2021 holding that though the plaintiff
had executed rectification deeds, those have been executed by the plaintiff
regarding documents(Sale Deeds) which are the part of record and have been
produced by the plaintiff before court in the suit. According to the provisions
of the Section 26 of the Specific Relief Act, 1963, the documents which are
the part of record cannot be amended without the permission of the Court,
while the plaintiff executed the rectification deed without the permission of
the court. So, said rectification deeds cannot be considered as valid
rectification deeds. Hence, on the basis of these rectification deeds, the
plaintiff cannot be permitted to amend the boundaries of the suit property.
Being aggrieved from impugned order petitioner/plaintiff filed this petition.
3. Learned counsel for the plaintiff submitted that plaintiff has filed the
suit for eviction and recovery of arrears of rent. Respondent in his written
statement admitted the tenancy. During the pendency of the suit,
petitioner/plaintiff sold the suit property. After that plaintiff has no interest
left in the suit house. So she wants to delete the prayer of eviction and
continue the suit only for recovery of arrears of rent. Petitioner/plaintiff has
not filed the suit for rectification of sale deed, therefore the provisions of
Section 26 of Specific Relief Act are not attracted in the suit. Learned trial
court wrongly rejected petitioner's prayer. So the impugned order be set
aside and petitioner/plaintiff be permitted to carry out the proposed
amendment in the suit.
4. Learned counsel for the respondent/defendant opposed the prayer and
submitted that the earlier amendment application of the petitioner/ plaintiff
was rejected by the trial court on the ground that the boundaries of the sold
property, mentioned in the sale deeds, do not match with the boundaries of
the suit property mentioned in the plaint. So, it cannot be said that the
plaintiff has sold the suit property to another person by those sale deeds.
Thereafter petitioner/plaintiff without the permission of the court executed
rectification deeds regarding these sale deeds, which cannot be considered as
valid rectification deeds. So, learned trial court did not commit any mistake
in rejecting the plaintiff's application. In this regard, he also placed reliance
upon the judgment passed by the coordinate Bench of this Court in the case
of Chain Singh Digpal Vs. Smt. Hari Bai Mehra reported in 2016 SCC
Online MP 10534.
5. This court has gone through the record and arguments put forth by
learned counsel for the parties. The facts of the case Chain Singh Digpal
(supra) relied upon by the learned counsel for the respondent/defendant do
not match with the present case. In that case, learned trial court allowed the
petitioner's application filed under Order 6 Rule 17 of CPC for permitting
him to insert the proposed amendment in the plaint, only rejecting the
petitioner's application filed under Section 151 of CPC for seeking
permission to insert the amendment in the document. In the instant case, the
plaintiff has not filed the application for seeking permission to insert the
amendment in the document, so that judgment does not assist the
respondent.
6. In the present case, the plaintiff/petitioner has not filed the suit for
rectification in the instrument. Plaintiff filed this suit for eviction of the
respondent from the suit property and to recover the arrears of rent. By way
of the proposed amendment plaintiff only wants to delete the prayer of
eviction from the plaint, and wants to continue the suit for recovery of
arrears of rent due on the respondent, upto 15.06.2019, when she had
allegedly executed the sale deeds of the suit property in favour of Rahul
Khore and Surendra Kumar. Whether the plaintiff sold the suit property or
not is a matter of fact, and cannot be ascertained at this stage. It requires
evidence to decide. Even otherwise when petitioner/plaintiff wants to delete
the prayer of eviction, the fact that whether the plaintiff has sold the suit
property or not ceases to be an important issue. In the instant suit, the trial
court has not framed issues as yet. The amendment application has been
filed at the pre-trial stage. From the proposed amendment the nature of the
suit does not change. So, in the considered opinion of this Court, the trial
court committed a mistake in rejecting the plaintiff's application.
7. Hence, the petition is allowed, the impugned order is set aside and the
trial court is directed to permit the petitioner / plaintiff to incorporate the
proposed amendment in the plaintiff. If the respondent/ defendant wants to
carry out a counter amendment in his written statement, opportunity be also
given to him. Thereafter, the trial court proceeds with the case according to
law. Both the parties shall bear their own costs.
(Rajeev Kumar Dubey)
JUDGE
sarathe
NAVEEN Digitally signed by NAVEEN KUMAR SARATHE
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ou=HIGH COURT OF MADHYA PRADESH,
KUMAR
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SARATHE
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KUMAR SARATHE
Date: 2021.10.25 17:33:22 +05'30'
