Smt. Mithilesh Sharma vs Azim Premji Foundation For ...
2022 Latest Caselaw 4068 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. 6652 of 2019

         Between:-
         SMT. MITHILESH SHARMA W/O SUNIL SHARMA ,
         AGED ABOUT 41 YEARS, R/O 25, SAGAR ROI VILLA,
         HOSHANGABAD     ROAD     BHOPAL (MADHYA
         PRADESH)

                                                                    .....PETITIONER
         (BY SHRI SANJAY K. AGRAWAL, ADVOCATE)

         AND

1.       AZIM PREMJI FOUNDATION FOR DEVELOPMENT
         REGISTERED       OFFICE    THROUGH      THE
         AUTHORISED SIGNATORY SHRI VIJAY KUMAR
         S/O SHRI K. KNIPPAN OFFICE 134, DODA KNEELI,
         SARJAPUR ROAD, BANGALORE (KARNATAKA)
         (KARNATAKA)

2.       STATE   OF    MP  THROUGH     COLLECTOR
         DISTT.BHOPAL (MADHYA PRADESH)

                                                                 .....RESPONDENTS
         (BY SHRI DEEPESH JOSHI, ADVOCATE)

      This petition is coming on for hearing this day, the court passed the

following:
                                      ORDER

This petition filed under Article 227 of the Constitution takes exception to the order dated 22/10/2019 passed by 22nd Civil Judge, Class-I, Bhopal in RCS No. 228-B/2016, whereby the application preferred by the respondent No.1/plaintiff under Order 6 Rule 17 CPC was allowed by the Court below.

2. Brief facts of the case are that the respondent No.1/plaintiff has instituted a suit in the Court of 22nd Civil Judge Class I, Bhopal for recovery of sum of Rs.69,72,394/- from the petitioner/defendant No.1. In para 6 of the plaint (Annexure P/1) it was averred that the petitioner had allegedly suppressed the fact and wrongly delivered the possession of the land purporting to be belonging to her of Khasra No. 41, which was not owned by her. The respondent No.1/plaintiff was asked to file the plaint in vernacular as required under civil court rules. In the vernacular version of the plaint (Annexure P/2) also it was specifically stated that

the petitioner/defendant No.1 sold land bearing Khasra No.41 despite knowing the fact that she is not the owner and in possession of the said land. On being noticed the petitioner/defendant No.1 filed her written statement (Annexure P/3) replied to the averments made in para 6 of the plaint by submitting that she never gave any

assurance as regards the ownership of land bearing Khasra No. 41. On the basis of rival pleadings, the learned trial Court framed issues, thereafter, the parties were called upon to adduce their respective evidence. The respondent No.1/plaintiff filed an affidavit of Shri K. Vijay Kumar under Order 18 Rule 4 of CPC. In para 7 of the affidavit also it was stated that the petitioner/defendant No.1 sold land bearing Khasra No.41 despite knowing the fact that she is not the owner of the land bearing Khasra No. 41. After commencement of the trial, the respondent No.1/plaintiff filed an application under Order 6 Rule 17 CPC (Annexure P/5) seeking amendment in the plaint. In the application, it was submitted that due to typographical error in para 6 of the plaint word "Khasra No.41" has been mistakenly written instead of "Khasra No. 34/1-2, 39/2/1, 39/2/2". The petitioner opposed the said application by submitting reply, wherein it was clearly stated that the trial of the suit has already commenced and the statement of the plaintiff witness and his cross examination is already over, therefore, in case the application is allowed, the same would result in material alteration in the nature of the suit. However, the trial Court vide impugned order dated 22/10/2019 (Annexure P/7) allowed the application for amendment holding that the proposed amendment would not have any adverse effect on the case as the same is only at the stage of evidence of the plaintiff. Feeling aggrieved with the said order, the petitioner/defendant No.1 preferred present petition before this Court.

3. Learned counsel for the petitioner by inviting the attention of this Court to the averments of amendment application submits that : (i) the facts narrated in the amendment application were well within the knowledge of the respondents No.1/plaintiff when instituted the suit; (ii) the pleadings sought to be introduced by way of amendment are also factual in nature which will cause prejudice; (iii) plaintiff/respondent No.1 not shown any "due diligence" in belatedly filing the application dated 22/04/2019 (Annexure-P/5) & (iv) the Court below without considering the proviso to Order 6 Rule 17 CPC mechanically allowed the

amendment application. In support of his arguments, he placed reliance on 2008 (8) SCC 511, [North Eastern Railway Administration Vs. Bhagwan Das (Dead)]; (2012) 11 SCC 341, [ Abdul Rehman & Anr. Vs. Mohd. Ruldu and Others.].

4. On the other hand, learned counsel for the respondent No.1/plaintiff opposed the prayer by supporting the impugned order. He also submits that the proposed amendment will not change the nature of the case. Thus, the only thing which is required to be seen is whether the amendment will cause any prejudice to

the petitioner/defendant No.1.

5. No other point is pressed by the learned counsel for the parties.

6. I have heard the parties at length and perused the record.

7. W.e.f. June, 2002, a proviso was inserted under Order 6 Rule 17 CPC.

8. A plain reading of the said proviso makes it clear that if an amendment application is filed after the commencement of trial, party seeking said amendment must establish "due diligence". This aspect was considered by Supreme Court in the case of Vidya Bai & others vs. Padmalatha & another reported in 2009 (2) SCC 409. After considering the judgment of Vidya Bai (supra) the Apex Court in Abdul Rehman vs. Mohd. Ruldu reported in 2012 (11) SCC 341 opined as under:

"10. Before considering the factual details and the materials placed by the appellants praying for amendment of their plaint, it is useful to refer Order 6 Rule 17 which is as under:

"17.Amendment of pleadings:-ÂThe court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

9. It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them.

10. The courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

[Emphasis Supplied]

11. A plain reading of this judgment makes it clear that an amendment application filed before commencement of trial and an amendment application filed after commencement of trial must be dealt with by applying different parameters. Pre-trial amendment must be dealt with leniently, whereas amendment prayed after commencement of trial must establish "due diligence". In Vidya Bai (supra) the Apex Court held that showing "due diligence" is a jurisdictional fact which needs to be established without that Court had no jurisdiction to allow the amendment application.

12. The other cases on which the petitioner has placed reliance, are in the same analogy. I do not dispute about the analogy on which learned counsel for the petitioner is relying upon, but here in this case, facts are altogether different and the Courts below even this Court can gather that the plaintiff has very categorically mentioned in his application filed under Order 6 Rule 17 of the C.P.C. that he got knowledge about incorrectness of Khasra Number mentioned in the plaint after cross examination of plaintiff/respondent No.1 witness by the petitioner on 11/04/2019 .

13. In view of the above, I do not find any infirmity in the order passed by the Court below. Accordingly, the petition having no substance, deserves to be and is hereby dismissed.

14. Needless to say that stay order granted in favour of the petitioner vide order dated 16/12/2019 stands vacated.

15. Let a copy of this order be sent to the concerned court for information.

(ARUN KUMAR SHARMA) JUDGE skt

Signature Not Verified SAN

Digitally signed by SANTOSH KUMAR TIWARI Date: 2022.03.25 17:48:30 IST