Jehruddin (Died) Through Lrs ... vs Mohmood Ali Ansari
2022 Latest Caselaw 3369 MP

                                                                         1
                                         IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                                                       BEFORE
                                                         HON'BLE SHRI JUSTICE VISHAL MISHRA
                                                                 ON THE 10th OF MARCH, 2022

                                                         WRIT PETITION No. 20190 of 2016

                                             Between:-
                                    1.       JEHRUDDIN (DIED) THROUGH LRS SHABBIR
                                             AHMAD S/O LATE JEHRUDDIN , AGED ABOUT 52
                                             YEAR S , NEAR STATE BANK, P.S AND TEHSIL
                                             BUDHAR (MADHYA PRADESH)

                                    2.       SMT. SHARIPAL @ SALMA W/O MOHD. SALEEM ,
                                             AGED ABOUT 45 YEARS, OCCUPATION: OLD
                                             MOBIL OIL BUSINESS R/O JALEBI CHOWK
                                             KHANDWA M.P. (MADHYA PRADESH)

                                                                                                         .....PETITIONER
                                             (BY SHRI B.P. YADAV, ADVOCATE)

                                             AND

                                    1.       MOHMOOD ALI ANSARI S/O LATE MOHD. ALI
                                             ANSARI SINEMA ROAD, BUDHAR P.S. AND TEHSIL
                                             BUDHAR (MADHYA PRADESH)

                                    2.       COLLECTOR THE STATE OF MADHYA PRADESH
                                             SHAHDOL (MADHYA PRADESH)

                                    3.       MASUD ALI ANSARI S/O LATE MOHD. ALI ANSARI
                                             CINEMA ROAD BUDHAR POLICE STATION AND
                                             TEHSIL BUDHAR DISTT - SHAHDOL (MADHYA
                                             PRADESH)

                                                                                                      .....RESPONDENTS
                                             (RESPONDENT NO.1 BY SHRI LALJI KUSHWAHA, ADVOCATE)

                                          T h is petition coming on for admission this day, the court passed the
                                    following:
                                                                          ORDER

The present petition under Article 227 of the Constitution of India has been filed challenging the order dated 20.10.2016 (Annexure P/1) passed by Civil Judge, Class-I, Budhar, District Shahdol in Civil Suit No.4-A/2015, whereby an application under Order 6 Rule 17 of C.P.C. has been rejected.

It is submitted that petitioners/plaintiffs instituted a suit for declaration and permanent injunction against the respondents/defendants.The

Signature Not Verified respondents/defendants have filed their written statement denying averments made SAN

in the plaint stating that his elder father namely Mohd. Suleman executed a Will Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2022.03.15 10:19:56 IST

dated 01.10.2001 in their favour. On the basis of which, they are claiming title over

the suit property and, therefore, the petitioners/plaintiffs moved an application under Order 6 rule 17 of C.P.C. for amendment in the plaint with regard to will dated 01.10.2001. It is submitted that the amendment was allowed and only a day's time was granted for consequential amendment and as the same could not be

incorporated, therefore, permission was refused on subsequent occasion to do consequential amendment. The impugned order itself reflected that the case is at primary stage, not even affidavit under Order 18 Rule 4 CPC has been filed in the matter. This Court has stayed the further proceedings of the civil suit vide order dated 13.12.2016. No further proceedings have taken place since then. In such circumstances, it is prayed that order refusing to permit the petitioners/plaintiffs to amend the plaint be set aside and they may be permitted to carry out the consequential amendment.

Counsel appearing for the respondent although opposed the prayer, but he fairly submits that after allowing the application for amendment, the consequential amendment should be permitted, for which, already a day's time was granted to the petitioners. However, he could not dispute the fact that the civil suit is at the stage of plaintiffs' evidence i.e. at the initial stage. Although he has supported the impugned order and prays for dismissal of the petition.

Heard learned counsel for the parties and perused the record. From a perusal of the record, the admitted position is that instant civil suit is at pretrial stage. Thus, in view of judgment of Supreme Court in Abdul Rehman vs. Mohd. Ruldu, (2012) 11 SCC 341, the Court below was required to deal with amendment application leniently. This is trite that while considering amendment application, the Court is not required to examine the merits of the case. To avoid multiplicity of litigation, the amendment application can be allowed. This is not unknown that alternative prayer can be advanced in the event plaintiff thinks that main relief may not be granted.

The Gwalior Bench of this Court in Jasrath Singh and others vs. Kamruddin and another WP No.3309/2012(I) permitted such amendment in Signature Not Verified SAN order to avoid multiplicity of the litigation and to ensure complete justice between Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2022.03.15 10:19:56 IST the parties. Similarly, this Court in Rajendra Prasad Katare vs. Smt. Seema

Kushwah and others WP No.7329/2013 has opined as under:

"ÂœIn AIR 2001 SC 699 (Ragu Thilak D. John Vs. S. Rayappan and Ors.) the Apex Court held that amendment can be allowed to avoid multiplicity of litigation. This court has also taken this view that change of nature of suit is not always a ground for disallowing the amendment application, See : 2010 (3) MPLJ 387 (Jaspreet Kaur & Anr. Vs. Ram Krishna and Ors).

I n 2012 (5) SCC 337 (Ramesh Kumar Agarwal Vs. Rajmala Exports Private Ltd. and others), the Apex Court opined that where the

amendment will minimize the litigation, merely because nature of the suit is changed, amendment cannot be disallowed. Respondent is unable to show as to how he will be prejudiced if amendment is allowed. Relief claimed by way of amendment is directly connected with the main relief existing in the suit."

From a perusal of the record, it is seen that impugned order, the application under Order 6 Rule 17 CPC was allowed and for consequential amendment only a day's time is granted. The aforesaid consequential amendment could not be incorporated within one day, therefore, permission for consequential amendment was rejected subsequently. But the facts remains that the time period granted for consequential amendment is very less and some breathing time should be granted to carry out the consequential amendment. In large number of cases, the Hon'ble Supreme Court has held that if the suit is at primary stage, the amendment should be allowed in the matter. In this case, amendment was permitted, therefore, consequential amendment is also required to be incorporated in the matter.

In such circumstances, the impugned order is hereby set aside. The petitioners/plaintiffs are permitted to carried out the consequential amendment by the next date of hearing subject to payment of cost of Rs.1000/-(Rs.One Thousand only) to be paid to the respondents/defendants. The petitioners/plaintiffs will not be granted any further time to carry out the consequential amendment.

The petition stands allowed and disposed of.

Signature Not Verified C.C. as per rules.

SAN

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2022.03.15 10:19:56 IST

(VISHAL MISHRA) JUDGE sj

Signature Not Verified SAN

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2022.03.15 10:19:56 IST