Madhya Pradesh High Court

Sandeep Jain vs Sakil Daud on 18 April, 2022

Author: Milind Ramesh Phadke

                           1
               HIGH COURT OF MADHYA PRADESH
  Misc. Petition No.1691/2022 (Sandeep Jain Vs. Shakeel Dawood and another)



Gwalior, Dated : 18.4.2022

      Petitioner-Sandeep Jain is present in person.

      Heard.

(1)   This writ petition under Article 227 of the Constitution of India

is at the instance of plaintiff challenging the order dated 22/03/2022

passed by Fourth Civil Judge, Senior Division, Gwalior, in Civil Suit

No.379/2018 MJC, whereby application under Order 6 Rule 17 CPC

filed by the petitioner was dismissed holding that it is barred by

provisions of Order 6 Rule 2 CPC, as the amendment sought is in the

nature of evidence by which the concise material facts pleaded are to

be proved and itself is not the material facts.

(2)   From the material facts available on record, it is evident that an

application under Order 6 Rule 17 CPC had been moved by the

petitioner for amendment in the pleadings of the objections filed under

Order 21 Rule 97 CPC against the execution filed by respondent no.1

for executing the judgment & decree dated 31/03/2015 passed in Civil

Suit No. 95A/2014, in relation to a shop No.24 situated at Dawood

Market, Balabai ka Bazar, where the Petitioner is a tenant, stating that

during the pendency of the present M.J.C. in the market he met one

Akil Dawood and Salman Dawood, who handed him one receipt dated

16/02/2022, which is in relation to shop No.25 and depicts the name of

Respondent No.1 as owner and that of Respondent No.2 a s tenant and

HIGH COURT OF MADHYA PRADESH Misc. Petition No.1691/2022 (Sandeep Jain Vs. Shakeel Dawood and another)

since the receipt is part of Receipt Book No. S-2001 and had been

received during the pendency of the present proceedings, it is

necessary to bring it on record by means of amendment in the

pleadings.

(3) Respondent No.1 in reply to the application submitted that the

petitioner just to avoid producing evidence and to linger on the

proceedings had submitted the application, which is not maintainable.

Thus, prayed for its dismissal.

(4) Petitioner appearing in person vehemently argued that the order

passed by the Trial Court is against the settled principles of law and the

amendment sought in the pleadings in no way is a matter of evidence

rather is offshoot of subsequent event and the Trial Court instead of

assessing the merits of the amendment, gave a finding that the

amendment sought is hit by provisions of Order 6 Rule 2 CPC, which

is perverse, rather it should have considered whether the amendment

sought, based on subsequent event, was necessary for adjudication of

the controversy. He further argued that the impugned order is in

contravention of the order passed by this Court in W.P. 14072/2017,

Ashok Jain Vs. Ruchita Agnihotri, decided on 27/11/2017, wherein

it had been held that amendment based on subsequent event is

permissible and merits of averments sought to be incorporated by way

of amendment are not to be judged at the stage of allowing the prayer

HIGH COURT OF MADHYA PRADESH Misc. Petition No.1691/2022 (Sandeep Jain Vs. Shakeel Dawood and another)

for amendment.

(5) Heard the petitioner at length.

(6) Bare perusal of the objections filed under Order 21 Rule 97 CPC

by the petitioner indicates that he is claiming himself to be the original

tenant of Shop No.24, with regard to which a decree for eviction had

been obtained by respondent No.1-Shakeel Dawood. Objections further

reveals that respondent No.1-Shakeel Dawood had filed a Civil Suit

No.95A/2014 for eviction and arrears of rent under M.P.

Accommodation Control Act, against present respondent No.2 Mukesh

Jain for Shop No.24, situated in Building No.1434, Dawood Market,

Daulatganj, Lashkar, Gwalior and on 31/03/2015 eviction decree was

passed. Respondent No.1, though not the owner of the shop, in

collusion with the Respondent No.2, got the eviction decree passed,

where in fact the shop belonged to one Malik Badshah Mia @ Shri

Sahab, resident of Bhopal and one Laxman Singh Mathur was his

tenant prior to 2009. Laxman Singh Mathur was doing shoe business

from the shop and had installed the electric connection in his name,

which at present is still in his name. After he vacated the shop, the

petitioner was inducted as a tenant by Badshah Mia @ Shri Sahab on a

monthly rent of Rs.400/- per month & on a deposit of Rs.1,00,000/- in

the year 2009 and since then he is the tenant in the premises. It is

further averred that respondent no.1 is not the owner of Shop No.24

HIGH COURT OF MADHYA PRADESH Misc. Petition No.1691/2022 (Sandeep Jain Vs. Shakeel Dawood and another)

and respondent no.2 was never the tenant and the factum of passing of

the eviction decree for the first time came to his knowledge only when

during the execution proceedings on 16/07/2018, the Court Officers

came to his shop.

(7) Thus, from the arguments & the averments made the entire

pleadings in the objections seem to rests upon the fact that respondent

no.1 is not the owner of shop No.24 and respondent No. 2 was not the

tenant of the said shop, both of them in collusion had got the judgment

& decree passed for eviction and the petitioner in capacity of tenant is

in occupation of the shop since 2009, therefore, the execution be

dropped. The pleadings so far as denial of ownership and tenancy of

the shop in dispute are concerned, are already there in the objections

and the amendment sought in the garb of subsequent event appears

nothing but a piece of evidence to substantiate the above pleadings,

which is hit by the provisions of Order 6 Rule 2 CPC, which provides

that every pleading shall contain and contain only, a statement in a

concise form of the material facts on which the party pleading relies for

his claim or defence, but not the evidence by which they are to be

proved.

(8) In the case of Virendra Kashinath Ravat Vs. Vinayak N.

Joshi, reported in (1999) 1 SCC 47, the Hon'ble Supreme Court

made the following observations with regard to the provisions of Order

HIGH COURT OF MADHYA PRADESH Misc. Petition No.1691/2022 (Sandeep Jain Vs. Shakeel Dawood and another)

6 Rule 2 of CPC :-

"17. The object of the Rule is twofold. First is to afford the other side intimation regarding the particular facts of the case so that they may be met by the other side. Second is to enable the court to determine what is really the issue between the parties. The words in the sub-rule ―a statement in a concise form are definitely suggestive that brevity should be adhered to while drafting pleadings. Of course brevity should not be at the cost of setting out necessary facts, but it does not mean niggling in the pleadings. If care is taken in the syntactic process, pleadings can be saved from tautology. Elaboration of facts in pleadings is not the ideal measure and that is why the sub-rule embodied the words ―and contain only just before the succeeding words ―a statement in a concise form of the material facts."

(9) I have no doubt that the petitioner by making the averments in

the objections had afforded sufficient notice to the other side, about

challenge to the ownership, as well as the factum of tenancy and now

he is not required to make a further elaboration regarding the said fact.

So far as reliance placed by the petitioner on the judgment of Ashok

Jain (Supra), it is misplaced as the said Judgment is based on different

factual matrix and is not applicable to the present case.

HIGH COURT OF MADHYA PRADESH Misc. Petition No.1691/2022 (Sandeep Jain Vs. Shakeel Dawood and another)

(10) Under such circumstances, the order of the Trial Court is found

to be unassailable in nature, there is no illegality or jurisdictional error

warranting interference under Article 227 of the Constitution of India.

(11) The petition being sans merits and is hereby, dismissed.