Naveen Chandra vs Subhash Dubey
2022 Latest Caselaw 2829 MP

      HIGH COURT OF MADHYA PRADESH
1                                                             MP No.226/2021

                            BEFORE
            HON'BLE SHRI JUSTICE ANIL VERMA
                 ON THE 28th OF FEBRUARY, 2022



                MISC. PETITION No. 226 of 2021

    Between:-
    NAVEEN CHANDRA S/O PRAKASH CHANDRA , AGED ABOUT
    40 YEARS, OCCUPATION: BUSINESS HOTEL MAHARAJA KE
    NEECHEM SUBHASH MARKET, SHAJAPUR (MADHYA
    PRADESH)
                                                 .....PETITIONER


    AND

   SUBHASH DUBEY S/O LATE LAXMINARAYAN DUBEY ,
1. AGED ABOUT 60 YEARS, OCCUPATION: GOVT. SERVICE
   PIPLI GALI, SHAJAPUR (MADHYA PRADESH)
   VAIBHAV S/O SUBHASH DUBE , AGED ABOUT 32 YEARS,
2. OCCUPATION:     HOTEL    SANCHALAK    PIPALI GALI
   SHAJAPUR (MADHYA PRADESH)
                                              .....RESPONDENTS

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

following:

       Shri M.K. Vijaywargiya, learned counsel for the
petitioner.
       None for the respondents, despite service of notice.
       Matter is heard finally.


                           ORDER

1/ By this miscellaneous petition filed under Article 227 of the Constitution of India, the petitioner has challenged the impugned order dated 4.1.2021 passed by the 1st Civil Judge Class-I, Shajapur in Civil Suit No.16-A/2015 whereby his first application under Order 6 Rule 17 of CPC and second HIGH COURT OF MADHYA PRADESH

application filed under Order 8 Rule 1(a) of CPC have been dismissed.

2/ Learned counsel for the petitioner submits that respondents/plaintiffs have filed a civil suit against the petitioner/defendant for ejectment. During the pendency of the suit defendant filed an application under Order 6 Rule 17 of CPC for amendment of certain facts in his written statement because the said facts came into his knowledge after filing the written statement. He submits that the proposed amendments are necessary for the proper adjudication of the matter but trial Court has dismissed his application ignoring the principles of established law. Petitioner has also filed certain documents in support of his contention, which were also received by the petitioner at belated stage but trial Court has rejected his application filed under Order 8 Rule 1(a) of the CPC.

3/ Unfortunately at the time of hearing nobody has appeared on behalf of the respondents despite service of notice issued against them. Therefore, this Court is not benefited by the argument of counsel for the respondents. However, heard counsel for the petitioner at length and perused the record.

4/ Learned counsel for the petitioner has placed reliance upon the judgment of the Hon'ble Apex Court in the case of Mohd. Ismile Vs. Dinkar in Civil Appeal No.7206 of 2009 decided on 28.10.2009.

5/ From perusal of the documents filed by the petitioner, it reveals that respondents have filed a civil suit for ejectment before the trial Court in the year 2013 and in the same year written statement has been filed by the petitioner. Petitioner has filed both the above mentioned applications under Order 6 Rule 17 and under Order 8 Rule 1(a) of CPC at the stage of final arguments. The proposed amendments have been filed after a lapse of 8 years of filing the written statement.

HIGH COURT OF MADHYA PRADESH

The petitioner did not assign any valid or good reason for such delay, therefore, it is also appeared that through the proposed amendment the nature of suit would be changed, which would cause prejudice to the other side.

6/ 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."

7/ Relying upon the law laid down by the Hon'ble Apex Court, this Court is of the considered view that trial Court has not committed any irregularity or perversity in rejecting the application filed by the petitioner under Order 6 Rule 17 of CPC.

8/ Learned trial Court has also rejected an application under Order 8 Rule 1(a) of CPC filed by the petitioner vide the impugned order. All the documents filed along with the application are prepared during 2013-15. As per the petitioner, the aforesaid documents were in his possession but he did not assign any good or valid reason as to why these documents were not filed by him along with his written statement. Therefore, such documents at a belated stage cannot be taken on record. Thus the trial Court has rightly rejected the application filed by the petitioner under Order 8 Rule 1(a) of CPC.

HIGH COURT OF MADHYA PRADESH

9/ Therefore, this Court is of the considered view that the trial Court has not committed any irregularity or perversity in rejecting both the applications filed by the petitioner under Order 6 Rule 17 and under Order 8 Rule 1(a) 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.

10/ 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: 2022.02.28 19:30:34 +05'30'