Kanhaiyadas S/O Fakirdas ... vs Kanhaiyadas S/O Ramdas ...
2022 Latest Caselaw 5105 MP

1                                                     MP No.2774/2021




           IN THE HIGH COURT OF MADHYA PRADESH
                                  AT INDORE
                                   BEFORE
                   HON'BLE SHRI JUSTICE ANIL VERMA

                         ON THE 8th OF APRIL, 2022

                   MISC. PETITION No. 2774 of 2021

   Between:-
   Kanhaiyadas S/o Fakirdas
   (since deceased) Now Lrs:-
   Chatardas S/o Kanhaiyadas
1.
   Aged: 67 years, Occupation : Agriculturist
   Rameshdas S/o Kanhaiyadas
2.
   (Since deceased) Now Lrs:-
   Bhagatdas S/o Rameshdas
a.
   Aged: 44 years, Occupation : Agriculturist
   Babudas S/o Kanhaiyadas
3.
   Aged:72 years, Occupation : Agriculturist
   Kishoredas S/o Kanhaiyadas
4.
   (Since deceased) Now Lrs:-
   Shravandas S/o Kishordas
a.
   Aged: 36 years, Occupation : Agriculturist
   Tulsidas S/o Kishordas
b.
   Aged: 35 years, Occupation : Agriculturist
   Rukmabai W/o Kishordas
c.
   Aged: 67 years, Occupation: Agriculturist,
   All resident of Village Gardawad, Tehsil Dhar,
   Presently residing at Village Kunwarsi,
   Tehsil Dhar, District Dhar (Madhya Pradesh)
                                                     .....PETITIONERS
    (BY SHRI Nitin Phadke Adv.)

    AND
 2                                                              MP No.2774/2021




     KANHAIYADAS S/O RAMDAS (DECEASED) THR. LRS. DINESHDAS S/O
1.   KANHAIYADAS , AGED ABOUT 42 YEARS, OCCUPATION:
     AGRICULTURIST VILLAGE GARDAWAD (MADHYA PRADESH)
     KANHAIYADAS S/O RAMDAS (DECEASED) THR. BHURIBAI W/O
     KANHAIYADAS , AGED ABOUT 68 YEARS, OCCUPATION:
2.
     AGRICULTURIST VILLAGE GARDAWAD, TAHSIL AND DISTRICT
     DHAR (MADHYA PRADESH)
     KANHAIYADAS S/O RAMDAS (DECEASED) THR. SANTOSHBAI D/O
     KANHAIYADAS , AGED ABOUT 35 YEARS, OCCUPATION:
3.
     AGRICULTURIST VILLAGE DELCHI, NEAR BHEROSALA FATA,
     TAHSIL BADNAWAR, DISTRICT DHAR (MADHYA PRADESH)
     STATE OF MADHYA PRADESH THR COLLECTOR DHAR
4.
     (MADHYA PRADESH)
                                                             .....RESPONDENTS
     (Shri L.R. Bhatnagar Adv. for respondents No.1 to 3 )



         This petition coming on for orders this day, the court passed the

following:




         With the consent of both the parties, the present miscellaneous

petition is heard finally.

                                    ORDER

1/ By this miscellaneous petition filed under Article 227 of the Constitution of India, the petitioner/plaintiff in the suit has challenged the impugned order dated 22.3.2021 passed by the 6th Addl. Judge to the Court of 1st Civil Judge Class-II, Dhar in C.S. No.12-A/2000 (New No.

33-A/2020), whereby an application under Order 6 Rule 17 of CPC filed by the petitioner/plaintiff has been rejected.

2/ Brief facts of the case are that petitioner/plaintiff has filed a civil suit for declaration and permanent injunction against the respondents/defendants No.1 to 4. Respondents No.1 to 4 made certain averments in their written statement, therefore, petitioner/plaintiff has filed an application under Order 6 Rule 17 of CPC for amendment of the plaint before the trial Court. After hearing both the parties, trial Court has rejected the application vide order dated 22.3.2021. Therefore, this petition has been filed before this Court.

3/ Learned counsel for the petitioner contended that the impugned order passed by the court below is against the facts, law and evidence available on record. The trial Court has committed grave error of law and jurisdiction in rejecting the application filed by the petitioner. The proposed amendments are necessary for the proper adjudication of the issue involved in the suit. The amendments sought by the petitioner were based on the subsequent event, which had taken place during the pendency of the suit, which had a material and vital bearing on the issue involved in the present suit. Affidavits of examination-in-chief have not been filed by the parties, therefore, no prejudice was likely to be caused to the respondents. Impugned order passed by the trial Court is illegal and perverse and if allowed to stand, would result in failure and miscarriage of justice. Hence he prays that impugned order dated 22.3.2021 be set

aside and the application under Order 6 Rule 17 of CPC filed by the petitioner be allowed.

4/ Per contra, learned counsel for the respondents/defendants No.1 to 3 opposed the petition and prays for its rejection by submitting that the impugned order passed by the court below is just and proper and in accordance with law.

5/ Both the parties heard at length and perused all the relevant documents filed by both the parties.

6/ On perusal of the record it appears that respondents No.1 to 4/defendants have filed their written statements and made certain averments in their special pleading and petitioner wants to deny the aforesaid pleadings and for this purpose petitioner has filed this petition for the proposed amendment in the plaint.

7/ The coordinate bench of this Court in the case of Hariram and another Vs. Patiram reported in 2016(4) MPLJ 449 has held as under:-

"The trial Court however, rejected the application on the ground that the trial has commenced. Whereas, the fact was that the plaintiff's witness was yet to be examined. It has been held in Baldev Singh and others v. Manohar Singh and another: (2006) 6 SCC 498; 2 W. P. No.17385/2013 "17- Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It

appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings."

8/ In the case of Vasudev Sharan Goyal Vs. Imartibai reported in 2018(III) MPWN 94 passed by this Court, it has been held as under :

"Thus, technically trial commenced when the date was fixed for leading evidence by the plaintiff but actually the amendment application was filed before the evidence was led by the plaintiff. The parties led evidence after the amendment application was filed. In this context, it is necessary to notice the order of the High Court dated 14.02.2014, which records that evidence of both the parties have been concluded. Most important fact to be noticed in the order is that the Court recorded the statement of plaintiff's counsel that parties have led evidence in view of the amendment sought in the plaint. Order dated 14.02.2014 is to the following effect:-

"The evidence of both the parties has been concluded. The matter has been listed for final disposal. The learned counsel for the plaintiff has pointed out the order dated 26.07.2011 wherein observation was made that in case I.A. No. 1001/2011 under

Order 6 Rule 17 CPC for amendment of the plaint is allowed, appropriate order for evidence of the plaintiff would be made. As a matter of fact, the plaintiff's counsel stated that the parties have also led evidence in view of amendment sought in the plaint and the same covered in the evidence produced by the parties. The defendants, however, alleged that the said amendment was unnecessary and was opposed by the defendants and issue involved in the said circumstances be considered at the time of final hearing of suit as defendant No.1 is more than 85 year old lady, the suit itself be decided. List this matter in the category of Short cause on 22.05.2014......"

The impugned order when is tested on the anvil of the decision in Usha Balashaheb Swami (supra), Sushil Kumar Jain (supra) & Mohinder Kumar Mehra (supra), cannot be given stamp of approval.

Consequently, impugned order is set aside. Application under Order 6 Rule 17 read with Section 151 of Code of Civil Procedure, 1908, whereby petitioner seeking amendment in the written statement is allowed."

9/ Learned counsel for the petitioner has placed reliance upon the judgment of the Bombay High Court in the case of Rameshkumar Agrawal Vs. Rajmala Exports Pvt. Ltd. And others reported in AIR 2012 SC 1887, wherein it has been held that:-

"11. It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amendhis pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all

circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigation."

10/ The Hon'ble Apex Court in the case of Gurbaksh Singh and others Vs. Buta Singh and another reported in AIR 2018 SC 2635 has held as under:-

"7..................... The object of the rule is that courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation and the plea that the relief sought by way of amendment barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel & Others v. Gattu Mahesh and others [(2012) 2 SCC 300] and Ramesh Kumar Agrawal v. Rajmala Exports (P) Ltd and others [(2012) 5 SCC 337]. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment."

11/ In the considered opinion of this Court, the proposed amendment is necessary in the light of the averment of the written submission and it is also necessary to specifically deny the pleadings of

the defendants. The reason assigned by the petitioner appears to be just and bonafide. Through the proposed amendment the whole complexion of the litigation will not change. Evidence of both the parties have not begun yet.

12/ In the considered opinion of this Court, the Court below acted not properly in exercising of its jurisdiction. It will be appropriate in the interest of justice that the proposed amendment should be allowed.

13/ Consequently the impugned order dated 22.3.2021 passed by the trial Court is set aside and the application under Order 6 Rule 17 of CPC filed by the petitioner/plaintiff, whereby the petitioner is seeking amendment in the plaint, is hereby allowed.

14/ Let the amendment be carried out within 15 days from today. The respondent/defendant would be at liberty to seek consequential amendment in their written statement.

15/ Present petition stands disposed of finally in the above terms. There shall be no order as to costs.

C.C. as per rules.

(Anil Verma) Judge trilok/-

Digitally signed by TRILOK SINGH SAVNER Date: 2022.04.12 19:08:51 +05'30'