Lalit vs Jalil Khan
2022 Latest Caselaw 744 MP

           The High Court Of Madhya Pradesh

                             MP No. 778 of 2020
                      (LALIT Vs JALIL KHAN AND OTHERS)

Indore, Dated : 17-01-2022
       Heard through Video Conferencing.

       Shri Pankaj Kumar Jain, learned counsel for the Petitioner .
       Shri Makbool Ahmad Mansoori, learned counsel for the
Respondent [R-1].

With the consent of both the parties, present petition is heard finally.

By this Miscellaneous Petition filed under Article 227 of the Constitution of India, the petitioner/defendant in the suit has challenged the impugned order dated 16/01/2020 passed by the trial court, by which, an application filed under Order 6 Rule 17 of CPC filed by the petitioner/defendant has been rejected.

2. Learned counsel for the petitioner submits that the respondent/plaintiff had filed the suit against the petitioner/defendant for declaration of title and permanent injunction. During pendency of the suit, the petitioner/defendant filed an application for amendment in the written statement. In reply to the application, it has been submitted by the respondent that the application is filed with intention to cause delay and there will be change in defence. Learned Court below rejected the application for the reason that the proposed amendment is subject matter of evidence and the evidence has began.

3. On perusal of the impugned order, it appears that the proposed amendment reveals the fact, which are the subject matter of the evidence. Issues have been framed on the basis of the pleadings filed by both the parties.

4. Learned counsel for the petitioner/defendant has relied upon the judgment rendered by co-ordinate Bench of this Court in the case of Hariram and another Vs. Patiram reported in 2016(4) MPLJ, 449. wherein it has been 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."

In the case of Vasudev Sharan Goyal Vs. Imartibai reported in 2018(III) MPWN 94 passed by this Court, wherein 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.

5. Learned counsel for the respondent has placed reliance upon the judgment of co-ordinate bench of this Court in the case of Dashrath and another Vs. Rajubai reported in 2015(1) MPLJ page 92, wherein it has been held that unless, Court comes to a conclusion that inspite of due diligence, party could not raise the matter before commencement of trial, no application for amendment can be allowed after commencement of the trial, but in the present case,the petitioner/defendant had stated in his application filed under Order 6 Rule 17 of CPC that the fact of proposed amendment was not brought before the knowledge of defendant's counsel during preparation of written statement, but on perusal of the record, the error come to his knowledge. The reason assigned by the petitioner seems to be just and bonafide and it is found that due to proper diligence, the defendant could not raise the matter before commencement of the trial.

6. 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.

7. Consequently, the impugned order dated 16/01/2020 passed by the trial Court is set aside and the application filed under Order 6 Rule 17 of C.PC filed by the petitioner/defendant, whereby the petitioner is seeking amendment in the written statement, is hereby allowed.

8. Let amendment be carried out within 15 days from today. The respondent/plaintiff would be at liberty to seek consequential amendment in the plaint.

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

CC as per rules.

(ANIL VERMA) JUDGE Digitally signed by AMOL N MAHANAG Date: 2022.01.18 09:57:43 +05'30'