Smt. Durga Malik vs Kumari Versha Bhalavi
2021 Latest Caselaw 5741 MP

                                                                     1                                MP-3037-2021
                                           The High Court Of Madhya Pradesh
                                                      MP-3037-2021
                                           (SMT. DURGA MALIK AND OTHERS Vs KUMARI VERSHA BHALAVI AND OTHERS)

                                 1
                                 Jabalpur, Dated : 21-09-2021
                                         Shri S.K. Sharma, learned counsel for the petitioners.
                                         The petitioners/defendant Nos.2 & 3 have filed this Miscellaneous
                                 Petition under Article 227 of the Constitution of India challenging the order
                                 dated 09.8.2021 passed by 12th Civil Judge Class II, Bhopal whereby an
                                 application under Order 6 Rule 17 of C.P.C. filed             by the respondent

No.1/plaintiff was allowed.

Learned counsel for the petitioners submits that impugned order of allowing the application under Order 6 Rule 17 of the C.P.C. is erroneous and not sustainable in eyes of law as it will change the nature of plaint. Lacuna, if any, in the plaint cannot be permitted to be filled up by an amendment. Hence, it is prayed that the impugned order be quashed.

Heard learned counsel for the petitioner at length and perused the record.

The suit filed by the plaintiff/ respondent No.1 is to declare the gift

deed as null and void and vide application under Order 6 Rule 17 of the C.P.C. plaintiff seeks amendment in the plaint praying to direct the petitioners/defendant Nos.2 & 3 to hand over physical possession of suit shop to the respondent No.1/plaintiff allotted by respondent No.2/defendant No.1.

Hon'ble Supreme Court in the case of B.K.N. Pilliai v. P. Pillai, AIR 2000 SC 614 has held that the purpose and object of Order 6 Rule 17, CPC is to allow either party to alter or amend his pleading in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is Signature Not Verified SAN true that the amendment cannot be claimed as a matter of right and under all

Digitally signed by MOHD AHMAD Date: 2021.09.24 10:53:16 IST 2 MP-3037-2021 circumstances. But it is equally true that the Courts while deciding such prayers should not adopt hyper-technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties.

Further, Hon'ble Supreme Court in the case of Estralla Rubber vs.

Dass Estate (P) Ltd. reported in (2001) 8 SCC 97 has held as under:-

"8. It is fairly settled in law that the amendment of pleadings 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 take 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.

The Supreme Court in the case of Raj Kumar Bhatia vs. Subhash Chander Bhatia reported in (2018) 2 SCC 87 has held as under:-

"12. This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be Signature Not Verified SAN

Digitally signed by MOHD AHMAD Date: 2021.09.24 10:53:16 IST 3 MP-3037-2021 allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article

Learned trial Court finding that the trial of suit is at an early stage and amendment will not change subject matter of suit and as same will not affect the defendant No.2 and 3/petitioners in any manner has allowed the application and permitted the plaintiff to amend the suit.

In view of above, I am of the opinion that no error has been committed by the trial Court in passing the impugned order. Even otherwise this petition is under Article 227 of the Constitution, where the scope of interference is

very limited. The Supreme Court in the matter of Jai Singh and others Vs. Municipal Corporation of Delhi and Another reported in 2010(9) SCC 385 while considering the scope of interference under Article 227 of the Constitution, has held that the jurisdiction under Article 227 cannot be exercised to correct all errors of judgment of a court, or tribunal acting within the limits of its jurisdiction. Correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

Having regard to the aforesaid, I am of the considered view that there is no illegality or perversity in the order impugned passed by the trial Court warranting interference of this Court under Article 227 of the Constitution of India. Consequently, the Misc. Petition is hereby dismissed.

(RAJENDRA KUMAR (VERMA)) JUDGE

ahd

Signature Not Verified SAN

Digitally signed by MOHD AHMAD Date: 2021.09.24 10:53:16 IST