Kartar Singh vs Moinuddin
2022 Latest Caselaw 8819 MP

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                                                     W.P. No.6352-2017



IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                             BEFORE

      HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                     ON THE 04th OF JULY, 2022

                   Writ Petition No.6352 of 2017


     Between:-
     KARTAR SINGH S/O SHRI BABU LAL SINGH, AGED
1.   ABOUT 76 R/O F-5 S.R.G. COMPLEX SECTOR-A,
     SONAGIRI, BHOPAL, MADHYA PRADESH.

                                                          .....PLAINTIFF
     (BY MR. AVINASH ZARGAR, LEARNED COUNSEL FOR
     THE PLAINTIFF)



     AND

     MOINUDDIN S/O SHRI MEIRAJ UDDIN, AGED ABOUT
     ADULT, R/O VILLAGE BAWADIYA KHURD TEHSIL,
1.   DISTRICT HUZUR, BHOPAL, PRESENT ADDRESS-D-14,
     B.D.A. COLONY KOHEFEJA BHOPAL, MADHYA
     PRADESH.
                                                      ...1ST DEFENDANT
     STATE OF MADHYA PRADESH, THROUGH -
2.   COLLECTOR, COLLECTOR OFFICE, BHOPAL MADHYA
     PRADESH.
                                                      ...2ND DEFENDANT
     KHALID MOHAMMAD KHA, S/O SHRI SAHID SAIED
     MOHAMMAD KHA, AGED ABOUT 27 YEARS, R/O
3.   VILLAGE CHHANU, DISTRICT HUZUR, BHOPAL,
     MADHYA PRADESH.
                                                      ...3RD DEFENDANT
     (MR. IMTIYAZ HUSSAIN - LEARNED SENIOR COUNSEL
     WITH MR. ISHTIYAQ HUSSAIN - FOR RESPONDENT
                                          2

                                                                  W.P. No.6352-2017



       NO.1, MR. G.P. SINGH - GOVERNMENT ADVOCATE
       FOR RESPONDENT NO.2 AND NONE FOR RESPONDENT
       NO.3)

.............................................................................................
......
This petition coming on for admission this day, the court passed the following:


                                     ORDER

Heard finally with the consent of both the parties.

2. In this writ petition filed under Article 227 of the Constitution of India, the petitioner/plaintiff has called in question the legality, propriety and validity of the order dated 22.03.2017 (Annexure P/1) passed by I Civil Judge Class I, Bhopal, whereby the application under Order VI Rule 17 of the Code of Civil Procedure (for short "CPC") filed by the respondent/ defendant No.1 has been allowed. Vide the same order dated 22.03.2017 application filed by the petitioner/plaintiff under Order XIII Rule 10 of the CPC seeking summoning of record of an earlier litigation, has been rejected.

3. Brief facts leading to filing of this case are that the petitioner/plaintiff has filed a suit seeking relief of specific performance of an agreement to sale and has claimed further relief of permanent injunction. The respondent/defendant No.1 had filed a written statement disputing the claim of the petitioner/plaintiff. In para 16 initially the respondent/defendant No.1 admitted that he did not appear for registration of the sale deed after having

W.P. No.6352-2017

received entire amount of sale consideration. After filing examination-in-chief in the form of affidavit under Order XVIII Rule 4 of the CPC, the respondent/defendant No.1 moved an application under Order VI Rule 17 of the CPC seeking amendment in para 16 of the written statement which was aimed at withdrawal of the aforesaid admission on the part of respondent No.1. The petitioner/plaintiff filed the reply and opposed the prayer made in the application. It was specifically pointed out that amendment is aimed at withdrawal of admission and that without explaining/ offering explanation with regard to due diligence in filing the application seeking amendment. The Trial Court vide impugned order allowed the application for amendment without assigning any cogent reasons, hence, this petition.

4. Learned counsel for the petitioner submitted that the Trial Court has erred in allowing the application inasmuch as without taking into consideration the fact that the amendment was hit by proviso under Order VI Rule 17 of the CPC and that the amendment was aimed at withdrawal of admission made by respondent/defendant No.1. In support of his contention, learned counsel for the petitioner relied upon the judgment of the Apex Court in the Case of Ram Niranjan Kajaria vs. Sheo Prakash Kajaria and Ors. reported in (2015) 10 SCC 203 to contend that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. In the present case, a bare perusal of para 16 of the written statement clearly reveals that it contains admission, therefore, the same cannot be deleted by way of amendment.

5. On the other hand, learned Senior counsel appearing on behalf of the respondent/defendant No.1 submitted that due to typographical error the

W.P. No.6352-2017

admission has been incorporated whereas there is no corresponding pleadings in para 10 of the plaint. Moreover, in para 18 of the written statement reply has been filed to para 11 of the plaint where the petitioner had made the averments. The admission in para Nos. 16 and 18 are the same, therefore, it cannot be said that it is an admission when the opening sentence itself says that the averments of para 10 are specifically denied, otherwise both would be contradictory. Learned Senior counsel also submitted that as per the settled legal position amendment can be allowed at any stage of the suit and the Courts ought to be liberal in allowing such amendment.

6. In reply learned counsel for the petitioner submitted that the Trial Court could not have allowed the application after the filing of affidavit under Order XVIII Rule 4 since the trial had already commenced.

7. Heard learned counsel for the parties on application under Order VI Rule 17 C.P.C..

8. On perusal of the impugned order, it is evident that the Trial Court has considered the application objectively and has exercised its jurisdiction well within the four corners of law. The amendment has been allowed with a view to delete the portion which has crept in written statement due to typographical error. Admittedly, there is no pleading in para 10 of the plaint against the pleadings which are sought to be deleted in the written statement at para 16. Accordingly, this court finds no error apparent on the face of the record so as to interfere with the finding of the trial Court. Accordingly, the petition so far as it relates to the application under Order VI Rule 17 of the CPC is hereby rejected.

W.P. No.6352-2017

9. The petitioner has also assailed the rejection of his application under Order XIII Rule 10 of the CPC praying for summoning of record of Civil Suit No.267-A/14 in which a document was filed pertaining to payment of sale consideration.

10. The Trial Court, however, by way of the impugned order has rejected the application holding that the petitioner/plaintiff can file the certified copy of the same.

11. Learned counsel for the petitioner submitted that learned Trial Court failed to take into consideration the explanation offered by the petitioner/plaintiff in para 6 of his application that since the document has not been exhibited, therefore, he is not able to produce the certified copy of the same. Therefore, the application ought to have been allowed.

12. Learned counsel for the petitioner relied upon the judgment of the Apex Court in the case of Lakshmi and another vs. Chinnammal alias Rayyammal and others reported in (2009) 13 SCC 25 and contended that the document to be brought on record is essential for grooming his case and therefore, ordinarily the same should not be refused and it is the Court's duty to find out the truth.

13. In reply, learned Senior counsel for the respondent/defendant No.1 submitted that on perusal of the order XIII Rule 10 of the CPC it can be seen that it is the total prerogative of the Court whether to summon the record or not. The Trial Court has exercised its discretionary jurisdiction in accordance

W.P. No.6352-2017

with law. He further submitted that the petitioner did not mention anything about the required document in the plaint and has rightly rejected the application.

14. Heard learned counsel for the parties on application under Order XIII Rule 10 C.P.C.

15. Since, the documents required from the records of another suit have not been exhibited till date, which is not disputed by the learned Senior counsel for the respondent/defendant No.1 and also with a view to proving a case and finding out the truth, the order of the learned Trial Court dated 22.03.2017 sofaras it relates to rejection of application under Order XIII Rule 10 of the CPC is concerned, is hereby set aside. Learned Trial Court is directed to summon the records and after taking the photocopy of the same return the records of the case to the concerned Trial Court immediately. Application under Order XIII Rule 10 of the CPC stands allowed.

16. In view of the aforesaid, the present petition is partly allowed.

17. No order as to costs.

(S. A. DHARMADHIKARI) JUDGE

DPS Digitally signed by DHEERAJ PRATAP SINGH Date: 2022.07.07 18:51:41 +05'30'