Aditya Sharma vs Smt. Anshu Sharma W/O Shri Aditya ...
2022 Latest Caselaw 14049 MP

                                    1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT JABALPUR
                              BEFORE
       HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                        ON THE 1st OF NOVEMBER, 2022

                    MISC. PETITION No. 4208 of 2022

        BETWEEN:-
        ADITYA SHARMA S/O DR/ MOHAN SHARMA,
        AGED   ABOUT   30  YEARS, OCCUPATION:
        PRIVATE JOB 101 BLOSSOM RESIDENCY
        DANISH KUNJ KOLAR ROAD BHOPAL M.P.
        (MADHYA PRADESH)

                                                                   .....PETITIONER
        (BY SHRI SHEKHAR SHARMA- ADVOCATE )

        AND
        SMT. ANSHU SHARMA W/O SHRI ADITYA
        SHARMA D/O SHRI KIRAN KANT SHUKLA,
        AGED ABOUT 29 YEARS, 461 SURESH NAGAR
        THATIPUR GWALIOR M.P. AND SHRI KIRAN
        KANT SHUKLA R/O 78 POLICE COLONY
        LALITPUR COLONY LASHKAR GWALIOR
        KAMPU GWALIOR M.P. (MADHYA PRADESH)

                                                                .....RESPONDENTS
        (BY SHRI VIKAS MAHAWAR- ADVOCATE )

      This petition coming on for admission this day, th e court passed the

following:
                                     ORDER

Heard finally with the consent of both the parties.

In this petition under Article 227 of the Constitution of India, the petitioner/plaintiff has challenged the order dated 09.09.2022 passed in RCS (HM) No.569/2018 by the Additional Principal Judge, Family Court, Bhopal, whereby the application under Order 6 Rule 17 of CPC has been rejected.

2. Brief facts leading to filing of this case are that the petitioner has filed an application under Section 13(1) of the Hindu Marriage Act, 1955 (hereinafter

shall be referred to as "the Act"), before the learned Family Court, Bhopal. During the course of arguments, it came to the knowledge of the petitioner/plaintiff that due to inadvertent typographical mistake in para 21, the date of cause of action has been mentioned as 29.11.2017 in place of 19.11.2017. Immediately, the petitioner filed an application under Order 6 Rule 17 read with Section 151 of CPC on 08.09.2022. The respondent/defendant filed her reply to the aforesaid application. The Court below without appreciating the contention put forth in the application for amendment, has rejected the application on the ground that the said fact was already in the knowledge of the petitioner/plaintiff since beginning and the Court cannot allow

the amendment since it would change the nature of the suit itself so also hearing in the case has taken place. Hence, this petition.

3. Learned counsel for the petitioner has taken this Court to page 19 of the writ petition (Annexure P/1), which is an application under Section 13(1) of the Act, particularly para 21 to point out the typographical error, wherein the date of cause of action has been mentioned as 29.11.2017. Learned counsel for the petitioner has also taken this Court to page No.34 of the writ petition, which is the reply filed by the respondent, wherein at para No.21, the respondent herself has mentioned the date of cause of action as 29.11.2017, whereas in page No.40 para 35, the respondent has stated that the cause of action arose in the morning of 19.11.2017. This fact is admitted by the respondent, therefore, the learned trial Court ought to have allowed the application instead of rejecting the same on the frivolous grounds without assigning any reason thereof as to how the nature of suit would change. It is further submitted that the Hon'ble Supreme Court in number of cases has held that typographical errors/other

minor errors can be corrected at any stage during pendency of the suit. The amendment if allowed would not change the nature of the suit. Rest of the things remain as it is. On these grounds, the impugned order deserves to be set aside and the petition is liable to be allowed.

4. Learned counsel for the petitioner has placed reliance on the judgment of the Apex Court in the case of Mohinder Kumar Mehra Vs. Roop Rani Mehra and others reported in (2018) 2 SCC 132 to contend that amendment can be allowed at any stage if it is in the nature of correction.

5. Learned counsel for the petitioner has also placed reliance on the judgment delivered in the case of Akshya Restaurant Vs. P. Anjanappa reported in AIR 1995 SC 1498, wherein it has been held as under:-

"€œIt is settled law that even the admission can be explained and even in consistent pleas could be taken in the pleadings. It is seen that in paragraph 6 of the written statement definite stand was taken but subsequently in the application for amendment, it was sought to be modified as indicated in the petition. In that view of the matter, we find that there is no material irregularity committed by the High Court in exercising its power under Section 115 of CPC in permitting the amendment of the written statement"€Â​.

6. On the other hand learned counsel for the respondent opposed the prayer and submitted that the actual cause of action arose on 29.11.2017 only and not on 19.11.2017. According to the proviso to Order 6 Rule 17 of CPC, the amendment cannot be allowed after the trial is commenced. In the present case, the trial is at the stage of final arguments, therefore, the trial Court has rightly rejected the application. No interference is called for and the petition

deserves to be dismissed. In support of his contention, learned counsel for the respondent has placed reliance on the judgment of the Apex Court in Civil Appeal No.7251/2008 (Vidyabai & Ors. vs. Padmalatha & Anr.)

7. Heard the learned counsel for the parties.

8. The Apex Court in the case of Revajeeta Builders and Developers Vs. Narayanswami & sons reported in (2009) 10 SCC 84, in which the law has been laid down and defined some basic principles, which ought to be taken into consideration while allowing or rejecting the application which are:-

(i) Whether the amendment sought is imperative for proper and effective adjudication of the case;

(ii) Whether the application for amendment is bonafide or malafide;

(iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (iv) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(v) Whether the proposed amendment continuously or fundamentally changes the nature of character of the case; and

(vi) as a general rule, the court should decline amendments if a fresh suit, on the amended claims would be barred by limitation.

9. None of the above issues were considered and decided by the trial court while passing the impugned order.

10. In the instant case, even though the trial has commenced but looking to the fact that only typographical error has crept in, the trial Court ought to have allowed the same and thereafter, heard the matter finally. Considering the aforesaid, this Court is of the opinion that the learned trial Court has committed an error of jurisdiction in rejecting the application. Accordingly, the impugned order dated 09.09.2022 is hereby set aside. The application under Order 6 Rule

17 is hereby allowed. The Court below is directed to proceed from that stage in accordance with law.

The instant Miscellaneous Petition is allowed to the extent indicated herein above.

No order as to costs.

                                                           (S. A. DHARMADHIKARI)
        Shanu                                                       JUDGE

Digitally signed by SHANU
RAIKWAR
Date: 2022.11.02 15:07:09 +05'30'