Madhya Pradesh High Court
Deendayal vs Smt Binai Lodhi on 27 June, 2022
Author: Maninder S Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S BHATTI
ON THE 27th OF JUNE, 2022
MISC. PETITION No. 1620 of 2019
Between:-
1. DEENDAYAL S/O RAMDAYAL @ PUNAU , AGED
ABOUT 68 YEARS, OCCUPATION: FARMER VILL.
GHUWARA, TEH GHUWARA, P.S BHAGWA
(MADHYA PRADESH)
2. SMT. KALIBAI D/O RAMDAYAL @ PUNAU
LODHI , AGED ABOUT 65 YEARS, OCCUPATION:
HOUSE WIFE VILLAGE GHUWARA TEH.
GHUWARA PS BHAGWA (MADHYA PRADESH)
3. SMT. NANNI BAI W/O MULU LODHI , AGED
ABOUT 60 YEARS, OCCUPATION: HOUSE WIFE
VILLAGE GHUWARA TEH. GHUWARA PS
BHAGWA (MADHYA PRADESH)
4. HARPRASAD S/O MULU LODHI , AGED ABOUT
58 YEARS, OCCUPATION: FARMER VILLAGE
GHUWARA TEH. GHUWARA PS BHAGWA
(MADHYA PRADESH)
5. JAMANA S/O MULU LODHI , AGED ABOUT 56
Y E A R S , OCCUPATION: FARMER VILLAGE
GHUWARA TEH. GHUWARA PS BHAGWA
(MADHYA PRADESH)
6. MANAK (MANIK) LAL LODHI S/O MULLU
LODHI , AGED ABOUT 42 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE GHUWARA TEH.
GHUWARA PS BHAGWA (MADHYA PRADESH)
7. SMT. SHYAMA D/O MULLU LODHI , AGED
ABOUT 51 YEARS, OCCUPATION: HOUSE WIFE
GHUWARA AT PRESENT R/O MEGAKHERA TEH.
LAHUWARA (MADHYA PRADESH)
8. SMT. PUNABAI D/O MULU LODHI , AGED ABOUT
Signature Not Verified 49 YEARS, OCCUPATION: HOUSE WIFE
GHUWARA AT PRESENT BHASOKHERA TEH.
SAN
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GHUARA PS BHAGWA (MADHYA PRADESH)
Date: 2022.07.01 16:00:39 IST
2
.....PETITIONERS
(BY SHRI SANJAY SHARMA, ADVOCATE)
AND
1. SMT BINAI LODHI W/O GANPAT LODHI , AGED
ABOUT 63 YEARS, OCCUPATION: HOUSE WIFE
R/O. GHUWARA TEH. GHUWARA (MADHYA
PRADESH)
2. GANPAT S/O RATU LODHI , AGED ABOUT 58
YE A R S , OCCUPATION: FARMER GHUWARA
TEH. GHUWARA (MADHYA PRADESH)
3. STATE OF M.P. THROUGH COLLECTOR DISTT.
CHHATARPUR M.P. (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI J.K. CHOURASIYA, ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioner has challenged the order dated 06/03/2019 (Annexure P/4)
by which the application moved at the behest of plaintiffs/petitioners under
Order 6 Rule 17 of Code of Civil Procedure has been rejected.
It is contended in the petition that the plaintiffs/petitioners have filed a suit
for declaration and permanent injunction which was fixed for evidence of the
plaintiffs/petitioners and thus at the very inception, the petitioners/plaintiffs
moved an application under Order 6 Rule 17 of CPC and sought an amendment
with regard to a typographical error in the prayer clause regarding area of the
property in question.
The area of 0.749 hectare which was described in paragraph 1 of the
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plaint as well as in the prayer clause was sought to be reduced to 0.565 Hectare
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by way of amendment. However the said application was rejected by the Court
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below.
Learned counsel for the petitioners/plaintiffs submits that the amendment
which was being sought was innocuous in nature and no prejudice was to be
caused to the defendants inasmuch as the amendment was for only
typographical correction. Moreover, by way of proposed correction, the area
of property in question is to be reduced with regard to which, prayer for
declaration as well as permanent injunction has been sought and thus while
relying upon the judgment of Apex Court in the case of Varun Pahwa Vs.
Renu Choudhary reported in (2019) 15 SCC 441 submits that an inadvertent
error can be corrected by way of amendment inasmuch as the same does not
change the nature of suit.
Per contra, learned counsel for the respondent while supporting the order
impugned submits that the Court below while taking into consideration the fact
that the plaint in question was submitted by the plaintiffs in the presence of their
counsel and therefore the plaintiffs were well aware as regards the averments
made in the plaint and therefore, when the plaintiffs already filed an affidavit
under Order 18 Rule 4 of CPC, therefore, the amendment was not permissible
and was rightly declined by the Court below.
Heard rival submissions on behalf of the parties.
The application for amendment which has been rejected by the trial
Court, pertains to correction of the clerical error and apparently the area
mentioned in body of the plaint is being sought to be reduced by the
plaintiffs/petitioners, however, there is no change as far as the Khasra Number
of the property is concerned. The property is same and only the area is being
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reduced. Apparently, such relief is innocuous in nature and is not going to
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cause any prejudice to respondents/defendants.
The Apex Court in paragraph 5 in the case of Gurubakhsh Singh and
Ors. Vs. Buta Singh and Anr. reported in (2018) 6 SCC 567 has held as
under:
"5. In the present case the record of Civil Suit No. 195 of 1968 in which ex
parte decree was passed on 30-6-1969 is not traceable. In the circumstances, there
could possibly be some inability in obtaining correct particulars well in time on part of
the appellants. At the time when the application for amendment was preferred, only
two official witnesses were examined. The nature of amendment as proposed neither
changes the character and nature of the suit nor does it introduce any fresh ground.
The High Court itself was conscious that the amendment would not change the nature
of the suit. In the given circumstances, in our view, the amendment ought to have been
allowed. In any case it could not have caused any prejudice to the defendants."
So also in paragraph 18 in the case of Rajesh Kumar Aggrawal and
Ors. Vs. K.K. Modi and Ors. reported in (2006) 4 SCC 385 the Apex Court
has held as under:
"18. As discussed above, the real controversy test is the basic or cardinal test
and it is the primary duty of the court to decide whether such an amendment is
necessary to decide the real dispute between the parties. If it is, the amendment will
be allowed; if it is not, the amendment will be refused. On the contrary, the learned
Judges of the High Court without deciding whether such an amendment is necessary
have expressed certain opinions and entered into a discussion on merits of the
amendment. In cases like this, the court should also take notice of subsequent events
in order to shorten the litigation, to preserve and safeguard the rights of both parties
and to subserve the ends of justice. It is settled by a catena of decisions of this Court
that the rule of amendment is essentially a rule of justice, equity and good conscience
and the power of amendment should be exercised in the larger interest of doing full
and complete justice to the parties before the court."
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Thus since the proposed amendment neither causes any prejudice to the
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defendants/respondents nor amounts to change in nature of the litigation,
therefore the order impugned is set aside. The application moved on behalf of
the petitioners/plaintiffs under Order 6 Rule 14 of CPC is allowed and the trial
Court is directed to proceed with the trial after incorporation of proposed
amendment in plaint.
With the aforesaid, the petition stands allowed.
(MANINDER S BHATTI)
JUDGE
Astha
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Date: 2022.07.01 16:00:39 IST
