Smt. Asha Singh vs Upendra Singh Baghel
2022 Latest Caselaw 4067 MP

                                  1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT JABALPUR
                                BEFORE
               HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
                         ON THE 24th OF MARCH, 2022

                    MISC. PETITION No. 4021 of 2018

        Between:-
        SMT. ASHA SINGH W/O BALRAM SINGH PARIHAR
        , AGED     ABOUT   66  YEARS, OCCUPATION:
        AGRICULTURE VILLAGE ITMA UBARI TEHSIL
        NAGOD DISTT. SATNA (MADHYA PRADESH)

                                                               .....PETITIONER
        (BY SHRI JAIDEEP SIRPURKAR, ADVOCATE)

        AND

1.      UPENDRA SINGH BAGHEL S/O RAJENDRA SINGH
        BAGHEL , AGED ABOUT 47 YEARS, JAIL ROAD
        CIVIL LINES NAGOD DISTT. SATNA (MADHYA
        PRADESH)

2.      ANANDITA SINGH D/O UPENDRA SINGH , AGED
        ABOUT 23 YEARS, JAIL ROAD CIVIL LINES NAGOD
        DISTT. SATNA (MADHYA PRADESH)

3.      AKANSHA SINGH D/O UPENDRA SINGH , AGED
        ABOUT 21 YEARS, JAIL ROAD CIVIL LINES NAGOD
        DISTT. SATNA (MADHYA PRADESH)

4.      SURYA PRATAP SINGH S/O UPENDRA SINGH ,
        AGED ABOUT 16 YEARS, OCCUPATION: MINOR
        THROUGH UPENDRA SINGH BAGHEL JAIL ROAD
        CIVIL LINES NAGOD DISTT. SATNA (MADHYA
        PRADESH)

5.      VISHNATH PRASAD VARMAN (DHIMAR S/O LATE
        SHREE RAMGOPAL VARMAN , AGED ABOUT 48
        YEARS, JAIL ROAD NEAR CIVIL JUDGE HOUSE
        CIVIL LINES TAH. NAGOD (MADHYA PRADESH)

6.      DILEEP KUMAR VARMAN (DHIMAR) S/O SHREE
        LATE RAMGOPAL VARMAN , AGED ABOUT 46
        YEARS, JAIL ROAD NEAR CIVIL JUDGE HOUSE
        CIVIL LINES TAH. NAGOD (MADHYA PRADESH)

7.      ASHOK KUMAR VARMAN (DHIMAR S/O SHREE
        LATE RAMGOPAL VARMAN , AGED ABOUT 41
        YEARS, JAIL ROAD NEAR CIVIL JUDGE HOUSE
        CIVIL LINES TAH. NAGOD (MADHYA PRADESH)

                                                             .....RESPONDENTS
        (BY SHRI KISHORI LAL PANDEY, ADVOCATE)

      This petition has come up for hearing on this day and the court passed the
following:
                                      2
                                      ORDER

By the instant petition, the petitioner is questioning the validity of the order dated 25.07.2018 (Annexure-P/5) passed by the Additional District Judge, Nagod, District Satna (M.P.) in a pending Civil Appeal No.53-A/2015 whereby, the trial Court dismissed the application submitted by the petitioner/ plaintiff under Order 6

Rule 17 read with Section 151 of the Code of Civil Procedure, holding that if the amendment is allowed it would change the disputed site shown in the Nazri Naksha.

2. On 26.11.2012 the petitioner/plaintiff filed a suit seeking relief of declaration, injunction and possession with respect to the suit property detailed in plaint map. Claim in the suit was founded on the ground that on 06.02.1981 the petitioner purchased the suit property from predecessor in interest of respondent No.5 to 7 and petitioner's name also came to be recorded in the records of local authority. However, taking advantage of the facts that the suit property was an open plot, the respondents encroached upon the same and also raised construction without any right title or interest. It was also stated that the respondents with collusion with each other got a sale deed executed with respect to the suit property which is null and void. The suit filed by the petitioner was dismissed vide judgment and decree dated 25.08.2015. Against which, he filed a civil appeal which is pending as Civil Appeal No.53A/15 before the Additional District Judge, Nagod. During pendency of the appeal, on 24.11.2017 an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure was filed by the petitioner / plaintiff seeking amendment in the plaint whereby certain facts were required to be brought on record by way of amendment in the plaint. The application was replied by the respondent / defendant and the same was dismissed by the Court below passing the order impugned on 25.07.2018 mentioning reason therein that the amendments would change the nature of the case and will cause prejudice to the defendant and also change the place of disputed site.

3. Learned counsel for the petitioner submits that the finding recorded by the court below that the proposed amendment would change identity of the suit property is perverse and incorrect. Further submitted that it is well settled in law that the rights of parties crystallize on date of filing of the suit and the court can

take notice of subsequent events. In support of his contentions, he has also placed reliance on the judgments of the Supreme Court in the case of Chakreshwari Const. Pvt. Ltd. vs. Manohar Lal (2017 5 SCC 212; Rajesh Kumar Aggarwal and others vs. K. K. Modi and others (2006) 4 SCC 385 and Pratibha Singh and another vs. Shanti Devi Prasad and another (2003) 2 SCC 330.

4. Per contra, learned counsel for the respondent justified the order of the trial Court and submitted that the said order does not warrant any interference.

5. Having heard learned counsel for the parties and on perusal of the

record, it is found that the Appellate court after considering the application and the reply and also hearing the arguments of learned counsel for both the parties, passed an order which is impugned in this petition, rejecting the application for amendment assigning the reason therein. The case law cited by learned counsel for the petitioner do not help him as they are altogether different from the present case.

6. I do not find any infirmity in the reasons given by the Court below while considering the application filed by the petitioner / plaintiff under Order 6 Rule 17 of the Code of Civil Procedure. Accordingly, the order passed by the Court below does not call for any interference. The petition is accordingly, dismissed.

7. However, the petitioner is granted a liberty to raise all such objection before the Appellate court at the time of final arguments.

Needless to say that the interim order granted on 28.08.2018 stands vacated. A copy of this order be sent to the concerned Court for information and necessary compliance.

(ARUN KUMAR SHARMA) JUDGE

Vin**

Signature Not Verified SAN

Digitally signed by VINOD SHARMA Date: 2022.03.26 16:16:23 IST