Praghvi Construction ... vs Ajit
2022 Latest Caselaw 2334 MP

      HIGH COURT OF MADHYA PRADESH
1                                                        MP No.1326/2020

                           BEFORE

       HON'BLE SHRI JUSTICE ANIL VERMA
          ON THE 21st OF FEBRUARY, 2022


             MISC. PETITION No. 1326 of 2020
    Between:-

   PRAGHVI CONSTRUCTION PARTNERSHIP FIRM 02, DUBE
1. COLONY INDORE / 80 PALSIKAR COLONY INDORE / 04-A,
   GULMOHAR COLONY INDORE (MADHYA PRADESH)
   AJIT S/O BHAWANDAS NAGPAL , AGED ABOUT 63 YEARS,
   OCCUPATION: VYAPAR 02 DUBE COLONY, INDORE AND 80
2.
   PALSIKAR COLONY, INDORE AND 04-A, GULMOHAR
   COLONY, INDORE (MADHYA PRADESH)
   KAPIL S/O AJIT NAGPAL , AGED ABOUT 37 YEARS,
   OCCUPATION: VYAPAR 02 DUBE COLONY, INDORE AND 80
3.
   PALSIKAR COLONY, INDORE AND 04-A, GULMOHAR
   COLONY, INDORE (MADHYA PRADESH)
   PUNIT S/O AJIT NAGPAL , AGED ABOUT 34 YEARS,
   OCCUPATION: VYAPAR 02 DUBE COLONY, INDORE AND 80
4.
   PALSIKAR COLONY, INDORE AND 04-A, GULMOHAR
   COLONY, INDORE (MADHYA PRADESH)
   SMT. KANCHAN W/O AJIT NAGPAL , AGED ABOUT 60
   YEARS, OCCUPATION: VYAPAR 02 DUBE COLONY, INDORE
5.
   AND 80 PALSIKAR COLONY, INDORE AND 04-A, GULMOHAR
   COLONY, INDORE (MADHYA PRADESH)
                                               .....PETITIONERS


    AND

   AJIT S/O JAYCHAND WADHWANI , AGED ABOUT 50 YEARS,
1. OCCUPATION: BUSINESS D304 DHARSHANAM VASNA
   BHGAILI ROAD BARODA (MADHYA PRADESH)
   BANK OF BARODA NAVLAKHA SAKHA, INDORE (MADHYA
2.
   PRADESH)
                                             .....RESPONDENTS

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

following:

       Shri Yogesh Chandra Markan, learned counsel for the
petitioners.
       HIGH COURT OF MADHYA PRADESH
2                                                          MP No.1326/2020

        Shri Nishant Khandelwal, learned counsel for respondent
No.1.
        Shri D.S. Panwar, learned counsel for respondent No.2.
      With the consent of both the parties, present petition is
heard finally.
                            ORDER

1/ By this miscellaneous petition filed under Article 227 of the Constitution of India, the petitioners/defendants in the suit have challenged the impugned order dated 20.12.2019 passed by the 5th Civil Judge Class-1, Indore in Civil Suit No.689-A/2018, by which an application under Order 6 Rule 17 of Code of Civil Procedure (in short "CPC") filed by the petitioners/defendants has been rejected.

2/ Brief facts of the case are that the respondent No.1/plaintiff has filed a civil suit against the petitioners and respondent No.2 for specific performance of the contract. Petitioner appeared before the trial Court and filed his written statement. Petitioner has also filed an application under Order 6 Rule 17 of CPC, which has been dismissed by the trial Court vide impugned order, therefore, petitioners have filed this petition.

3/ Learned counsel for the petitioners submits that impugned order passed by the court below is contrary to the principles of natural justice. Petitioners have filed an application for amendment and proposed amendments are necessary to clarify the averments made by them in the written statement. The amendment did not change the nature of defence. Trial Court did not consider the legal aspects. Impugned order is non speaking and contrary to the law and also bad in nature. Hence, he prays that impugned order be set aside and his application under Order 6 Rule 17 of CPC be allowed.

HIGH COURT OF MADHYA PRADESH

4/ Per contra, learned counsel for the respondents have relied upon the language implied in Order 6 Rule 17 of CPC. It is also urged that amendments are not clarificatory in nature.

5/ I have heard the learned counsel for the parties and perused the record.

6/ Undoubtedly before amendment in Order 6 Rule 17 of CPC w.e.f. June 2002, the scope of seeking amendment was much wider than the scope which exist today after the amendment. After the amendment in Order 6 Rule 17 of CPC, certain proviso has been inserted.

7/ Learned counsel for the petitioners/defendants has relied upon the judgment rendered by the coordinate Bench of this Court in the case of Harivansh Vs. Arvind Kumar reported in 2017(II) MPWN 13, wherein it has been held as under:-

"7. Upon perusal of the amendments allowed by the trial Court, true it is that the aforesaid amendments are clarificatory in nature. Admittedly, the amendments so incorporated do not change nature of the suit or bring in such new facts which may cause prejudice to the defendant/petitioner as the defendant shall have full opportunity to make consequential amendment in the written statement. The trial Court shall be under an obligation to frame additional issues on the basis of the pleadings so amended by the parties. However, there is substantial force in the contention advanced by learned counsel for petitioner that there is unwarranted delay in filing the amendment application. Hence, this Court deems it fit and proper to allow substantial cost to compensate the defendant/petitioner, as such the cost is increased from Rs.500/- to Rs.10,000/- (Rupees ten thousand only) which shall be paid by the plaintiff/respondent to the defendant/petitioner within a week from today. Thereafter, the trial Court shall proceed further in the suit."

HIGH COURT OF MADHYA PRADESH

8/ Learned counsel for the petitioners has also placed reliance upon the judgment of Hon'ble Apex Court in the case of N.C. Bansal Vs. Uttar Pradesh Financial Corporation and Another reported in (2018) 2 SCC 347, wherein it has been held that:-

"17. It is for the reason that firstly, the suit is still at the initial stage i.e. the trial has not yet begun; second, the proposed amendment sought in the plaint does not change the nature of the suit; third, the applications could not be said to have been filed by the plaintiff belatedly because the suit had been dismissed by the trial Court as not maintainable in its initial stages and for all these years it was sub judice in appeal. It is only after the appellate court remanded the case to the trial court for its trial, the appellant-plaintiff filed the applications in the suit and sought permission to amend the plaint and file certain documents in support thereof; fourth, the courts, in these circumstances, should have been liberal in allowing the proposed amendment."

9/ But in the present case civil suit before the trial Court is at the stage of plaintiff's evidence and plaintiff has already filed affidavit of his witnesses. Proposed amendment has been filed after a year of filing of the written statement and petitioner did not assign any good reason for such delay. Petitioner/defendant has stated in his application filed under Order 6 Rule 17 of CPC that proposed amendments are clarificatory in nature, but proposed amendments are not clarificatory in nature. The nature of the defence has been materially changed by the proposed amendment, therefore, the reason assigned by the petitioner not appears to be just and bonafide and it is also not established that due to proper diligence the defence could not raise the matter before the commencement of trial.

HIGH COURT OF MADHYA PRADESH

10/ The Hon'ble Apex Court in the case of Pandit Malhari Mahale Vs. Monika Pandit Mahale and others reported in 2020(11) SCC 549 has held that:-

"It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."

Under the facts and circumstances of the case, it appears that proposed amendment may change the whole complexion of litigation and such amendments are not necessary to decide the real question in controversy. Therefore, this Court is of the considered view that the trial Court has not committed any irregularity or perversity in rejecting the application filed by the petitioner under Order 6 Rule 17 of CPC, which may warrant any interference from this Court. Hence, no interference is warranted in exercise of the jurisdiction under Article 227 of the Constitution of India.

Present petition sans merit and is hereby dismissed accordingly.

C.C. as per rules.

(Anil Verma) Judge trilok/-

Digitally signed by TRILOK SINGH SAVNER Date: 2022.02.22 18:49:12 +05'30'