Madhusudan Acharya Deceased ... vs Nirmala
2022 Latest Caselaw 15718 MP

                                                       1
                           IN    THE    HIGH     COURT OF MADHYA                PRADESH
                                                   AT INDORE
                                                     EFORE
                                    HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                          ON THE 29 th OF NOVEMBER, 2022
                                           MISC. PETITION No. 3464 of 2022

                           BETWEEN:-
                           1.    MADHUSUDAN ACHARYA DECEASED THROUGH
                                 LRS. SANJAY S/O LATE DR. MADHUSUDANJI
                                 ACHARYA BHIMAKHEDA, MAHIDPUR DISTRICT
                                 UJJAIN (MADHYA PRADESH)

                           2.    MADHUSUDAN ACHARYA DECEASED THROUGH
                                 LRS. DR. NITIN S/O LATE DR. MADHUSUDANJI
                                 ACHARYA BHIMAKHEDA, MAHIDPUR DISTRICT
                                 UJJAIN (MADHYA PRADESH)

                           3.    MADHUSUDAN ACHARYA DECEASED THROUGH
                                 LRS. RAJSHREE D/O LATE DR. MADHUSUDANJI
                                 ACHARYA BHIMAKHEDA, MAHIDPUR DISTRICT
                                 UJJAIN (MADHYA PRADESH)

                           4.    MADHUSUDAN ACHARYA DECEASED THROUGH
                                 LRS. MADHURI D/O LATE DR. MADHUSUDANJI
                                 ACJARUA BHIMAKHEDA, MAHIDPUR DISTRICT
                                 UJJAIN (MADHYA PRADESH)

                           5.    MADHUSUDAN ACHARYA DECEASED THROUGH
                                 LRS.  SMT.   CHETAN  D/O    LATE  DR.
                                 MADHUSUDANJI   ACHARYA    BHIMAKHEDA,
                                 MAHIDPUR   DISTRICT  UJJAIN   (MADHYA
                                 PRADESH)

                                                                              .....PETITIONER
                           (SHRI A.S. GARG, LEARNED SENIOR COUNSEL WITH MS.MEGHA JAIN,
                           LEARNED COUNSEL FOR THE PETITIONER)

                           AND
                           NIRMALA       W/O     SUBHASHCHANDRA     JI
                           CHANDRASHEKHAR GALI, WARD NO. 15, MAHIDPUR,
                           DISTRICT UJJAIN (MADHYA PRADESH)

                                                                             .....RESPONDENT
                            (SHRI ATISHAY DHAKER, LEARNED COUNSEL FOR THE RESPONDENT
Signature Not Verified
Signed by: SOURABH
YADAV
Signing time: 11/30/2022
6:09:53 PM
                                                               2
                            [R-1])

                           This petition coming on for orders this day, the court passed the following:
                                                                ORDER

1. This is a petition filed under Article 227 of the Constitution of India challenging the order dated 05.07.2022 passed by Second Civil Judge, Junior Division Mahidpur, District Ujjain in RCS A/500026/2014, whereby, the application filed by the respondent under Order 6 Rule 17 of the CPC has been allowed.

2. The facts of the case are that the respondent/plaintiff filed a civil suit seeking relief of eviction, arrears of rent, possession, mesne profit and cost with respect to the suit property against the father of the petitioner/defendant nos.1-

5. It was alleged in the plaint that the suit property ward no.14 Rajendra Marg, Mahidpur, Ujjain was in the ownership of Kamlabia, who is mother-in-law of the respondent and she acquired the property from her.

3. The written statement was filed denying the averments of the plaint and also denying the ownership of the respondent for want of title deed as well as for lack of requisite pleadings in respect of the same. During the pendency of the suit, the predecessor of the petitioner expired and the petitioners were brought on record as legal representative. Later on, the case was fixed for respondent's evidence and her examination-in-chief was completed and the cross-examination was conducted. During the cross-examination, the plaintiff/respondent filed an application under Order 6 Rule 17 of the CPC seeking amendment in the plaint claiming it to be a consequential amendment. By the said application, it was sought to be incorporated in the plaint that the suit property was acquired by the respondents by way of will executed by her mother-in-law in her favour. The said application has been allowed by the trial Court, which has been

Signature Not Verified Signed by: SOURABH YADAV Signing time: 11/30/2022 6:09:53 PM

challenged in the present petition.

4. Learned counsel for the petitioner submits that the trial court erred in allowing the application for amendment by not considering the fact that the respondent/plaintiff was having the knowledge of the will from the initial stage but did not plead the same. It is also submitted that the suit was filed in the year 2013, whereas, the said will was filed in the year 2016 and at later point of time, almost after the lapse of six years from filling of the will on record and lapse of 9 years from filling of the suit, the application for amendment was filed.

5. Learned counsel for the petitioner submitted that the application was filed after commencement of the trial and therefore, the application was liable to be rejected in view of the proviso to Order 6 Rule 17 CPC. He further submitted that the respondent/plaintiff ought to have pleaded and prove that why he could not file the application for amendment earlier. In support of his submission, he has referred the judgment passed by the co-ordinate bench of this court in the case of Manoj Jain Vs. Suman Goyal passed in WP No.2191/2013 passed on 22.07.2014, where, the Court set aside the order allowing the application for amendment mainly on the ground that the trial court must address upon the issue as regards existence of jurisdictional facts and only after recording its satisfaction. The application does not reflect that the facts sought to be brought on record despite due diligence could not be brought on record at time

by filling of the suit or before the commencement of the trial. He also relied on the judgment passed by the Apex Court in the case of L.C Hanumanthappa Vs. H.B Shiva Kumar reported in 2016 (3) MPLJ 281 (SC), where the Court held that the Doctrine of relation back would not apply in facts of the case since a legal right that had accrued in favour of the defendants would be taken away.

Signature Not Verified Signed by: SOURABH YADAV Signing time: 11/30/2022 6:09:53 PM

6. Learned counsel for the petitioner further referred the judgment passed by the Apex Court in the case of Pankaja and Another Vs. Yellappa and Ors reported in AIR 2004 SC 1402, where the application for amendment was rejected without considering the question of limitation.

7. Learned counsel for the respondent supported the impugned order mainly on the ground that in para 2 of the plaint, the plaintiff has already pleaded that the suit was acquired by him by way of will executed by her mother-in-law in her favour. The said will has already been taken on record by the trial Court and therefore, without pleading, the same would not be exhibited in the evidence. The trial Court has rightly allowed the said application as the same would not change the nature of the suit and no prejudice would cause to the petitioner. In support of his submission, he has placed reliance on the judgment passed by the Apex Court in the case of Mohinder Kumar Mehra Vs. Roop Rani Mehra reported in (2018) 2 SCC 132, it has been held that the application for amendment can be allowed even after commencement of the trial if no prejudice is caused to the other side.

8. In a recent judgment, the Apex Court in the case of Life Corporation of India Vs. Sanjiv Builders Pvt. Ltd and Ors passed in Civil Appeal No.5909/2022, has held that where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed.

Signature Not Verified Signed by: SOURABH YADAV Signing time: 11/30/2022 6:09:53 PM

Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897).

9. In the light of the aforesaid discussion and enunciation of the law, I do not find any illegality or perversity in the impugned order warranting any interference under Article 227 of the Constitution of India.

10. Even otherwise, it is settled law that jurisdiction under Article 227 of the Constitution of India cannot be exercised to correct all errors of subordinate Courts within its limitation. It can be exercised where the order is passed in grave dereliction of duty and flagrant abuse of the fundamental principle of law and justice. [See. Jai Singh and another vs. MCD, (2010) 9 SCC 385 and Shalini Shetty vs. Rajendra S. Patil, (2010) 8 SCC 329].

11. In view of the aforesaid enunciation of law, the instant petition is devoid of merit and is hereby dismissed. The order impugned in the present writ petition passed by the Court below is upheld.

(VIJAY KUMAR SHUKLA) JUDGE

Sourabh

Signature Not Verified Signed by: SOURABH YADAV Signing time: 11/30/2022 6:09:53 PM