Madhya Pradesh High Court

Babulal Malviya vs Raghunath on 28 October, 2021

Author: Vishal Mishra

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             HIGH COURT OF MADHYA PRADESH

                        M.P. No. 2566 of 2021

  (Babulal Malviya and another Vs. Raghunath and another)

Jabalpur, Dated : 28.10.2021


       Shri Ahadulla Usmani, learned counsel for the petitioners.

       Heard on the question of admission.

       By way of the present writ petition filed under Article 227 of the

Constitution of India the challenge is made to the order dated 15.07.2021,

(Ann. P-1), passed in Civil Suit No. 16-A/2014 by the IIIrd Civil Judge, Class

- II, Chhindrawara, whereby the application filed by the petitioners for

amendment in the suit for incorporating a new paragraph as 3-A in the

plaint has been rejected on erroneous consideration. It is alleged that the

petitioners are brothers and the property is situated in Kh. No. 43/1 and

184. Civil suit was filed by the petitioners seeking permanent injunction.

The civil suit was with respect to the property in question.

       The written statement was filed by the defendants. The civil suit

was finally dismissed on 29.11.2014, against which an appeal was preferred

by the plaintiffs, which was registered as Civil Appeal No. 4-A/2015. The

same was finally heard and decided, vide judgment dated 23.3.2017 and

the matter was    remanded     back for fresh consideration and they were

directed to appear    before the trial court on 10.4.2017. Thereafter, an

application under Order 6, rule 17 of CPC        was filed by the     plaintiffs

seeking amendment to       incorporate    the   averments      with respect to

demolition   of the alleged construction made by the defendants.           The

aforesaid application was allowed by the learned trial court and thereafter

again an application was filed by the petitioners seeking amendment with

respect to restoration of possession. The aforesaid application was

considered by the learned trial court and rejected, vide impugned order
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dated 15.7.2021, (Ann. P-1) observing          that on earlier occasion, the

amendment application was filed and was allowed by the learned trial

court on 27.8.2013. Civil suit is at the stage of final hearing and now the

relief which has      been claimed by the petitioners for      restoration of

possession cannot be granted. The petitioners are trying to delay the

proceedings of the civil suit and in such premises, the aforesaid application

was rejected.

       It is argued that once the application for removal of encroachment

was allowed by the learned        trial court, then the subsequent relief   of

restoration of possession could very well granted by the learned trial court.

A specific question was made by this court that the civil suit is at which

stage, it is fairly submitted that the civil suit is at the stage of final

arguments. It is seen from the record that after remand of the case by

the appellate court, the application for amendment was filed by the

plaintiffs - petitioners, which was allowed by the learned trial court. Now

the civil suit   is   at   the stage of final arguments. The application for

amendment seeking          restoration of possession is filed, whereas in the

original suit, there was no such prayer made by the plaintiffs- petitioners.

       The Hon'ble Court in the case of M. Revanna Vs. Anjanamma,

(dead) and others reported in (2019) 4, SCC 332 has considered the

aspect of Order 6 Rule 17 of CPC and has held as under :-



           "The proviso to Order 6 Rule 17 of the CPC virtually
           prevents an application for amendment of pleadings
           from being allowed after the trial has commenced,
           unless the Court comes to the conclusion that in
           spite of due diligence, the party could not have
           raised the matter before the commencement of the
           trial. The proviso, to an extent, curtails absolute
           discretion to allow amendment at any stage.
           Therefore, the burden is on the person who seeks
           an amendment after commencement of the trial to
           show that in spite of due diligence, such an
           amendment could not have been sought earlier. An
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amendment cannot be claimed as a matter of right,
and under all circumstances. Though normally
amendments are allowed in the pleadings to avoid
multiplicity of litigation, the Court needs to take into
consideration       whether     the    application    for
amendment is bona fide or mala fide and whether
the amendment causes such prejudice to the other
side which cannot be compensated adequately in
terms of money.
                                                (Para 7)




In this case there is no explanation by Plaintiffs 1 to
5 as to why they did not file the application for
amendment till the year 2008, given that the suit
had been filed in 1993. They kept quiet without filing
an application for amendment of the plaint within a
reasonable time. By the time the application was
filed the evidence of both parties had been recorded
and the matter was listed for final hearing before
the trial court. The suit itself is for partition and
separate possession. Now, by virtue of the
application for amendment of pleadings, Plaintiffs 1
to 5 want to plead that the partition had already
taken place in the year 1972 and they are not
interested to pursue the suit. Per contra, Plaintiff No.
6/Respondent No.1 herein wants to continue the

proceedings in the suit for partition on the ground that the partition had not taken place at all.

(Para 8)

In the circumstances, the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiffs 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff No. 6/Respondent No. 1 herein.

(Para 9)

In the present case the civil suit is at the stage of final arguments,

as stated by the petitioners' counsel himself the application under Order 6,

Rule 17 of CPC has been filed at a belated stage. The aforesaid relief

could have been claimed by the petitioners at the earlier stage when the

the earlier amendment application was filed. The due diligence could not

be explained by the petitioners in filing the application for amendment.

The Hon'ble Supreme Court has considered the aspect of Article

227 of the Constitution of India in the case of Shalini Shyam Shetty Vs.

Rajendra Shhankar Patil reported in (2010) 8 SCC 329, wherein

certain guidelines have been issued by the Supreme Court, which are as

under :-

held as under:-

"The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Interference is made to ensure that Courts below act within the bounds of their authority. Another view is possible, is not a ground for interference. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner."

In such circumstances, no illegally has been committed by the

learned trial court in rejecting the application for amendment filed under

Order 6, Rule 17 of CPC. The application has rightly been rejected.

Considering overall facts and circumstances of the case, and the fact that

due diligence could not be explained by the plaintiffs -petitioners coupled

with the direction issued by the Supreme Court under Article 227 of the

Constitution of India, i.e. the supervisory jurisdiction of this court, no

illegality appears to have been committed by the learned trial court. The

order is just and proper and does not call for any interference in the

present writ petition.

Petition sans merits and accordingly dismissed.

(VISHAL MISHRA) JUDGE bks