Sushil Kumar Jain vs Washim Iqbal Ali
2022 Latest Caselaw 13826 MP

                                                                        1
                                             IN THE HIGH COURT OF MADHYA PRADESH
                                                          AT JABALPUR
                                                                BEFORE
                                                  HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                        ON THE 27th OF OCTOBER, 2022

                                                    MISC. PETITION No. 4765 of 2018

                                       BETWEEN:-
                                       SUSHIL KUMAR JAIN S/O SHRI SUGAM CHAND JAIN,
                                       AGED ABOUT 64 YEARS, OCCUPATION: BUSINESS R/O
                                       GURU NANAK WARD, SEONI (MADHYA PRADESH)

                                                                                                      .....PETITIONER
                                       (BY SHRI PUNIT CHATURVEDI, ADVOCATE)

                                       AND
                         1.            WASHIM IQBAL ALI S/O ASHGAR ALI, AGED ABOUT 30
                                       YEARS, R/O JIYARATNAKA, SEONI (MADHYA PRADESH)

                         2.            TABREZ ALI S/O ASHGAR ALI, AGED ABOUT 25 YEARS,
                                       R/O JIYARATNAKA, SEONI (MADHYA PRADESH)

                                                                                                   .....RESPONDENTS
                                       (NONE)

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

This Miscellaneous Petition is filed by the plaintiff being aggrieved of order dated 14.09.2018 passed by learned 5th Civil Judge, Class-I, Seoni in RCS-A

No.1000035/2014 rejecting an application under Order 6 Rule 17 of CPC.

Learned counsel for the petitioner submits that petitioner is a plaintiff before the Trial court. Petitioner filed a suit seeking injunction from eviction. In said suit, defendants filed counter claim seeking eviction of the plaintiff. Evidence of the plaintiff was admittedly complete. Then an application under Order 6 Rule 17 CPC was filed as is Signature Not Verified SAN available on record as Annexure P-1 in which it is mentioned that recently plaintiff received information that father of the defendants Asghar Ali had received another Digitally signed by MOHD TABISH KHAN Date: 2022.10.31 11:14:32 IST

property situated at Kaji Ward under family settlement and that property consisting of three rooms is in possession of the defendants. Front portion of the said property is used for the business of the defendants and, therefore, there being an alternative accommodation available to the defendants, suit for eviction is not maintainable.

Reliance is placed on the judgment of Hon'ble Supreme Court in case of Chakreshwari Construction Private Limited Vs. Manohar Lal, (2017) 5 SCC 212, wherein it is held that amendment of pleadings and consequential submission of additional documents can be allowed:

1) when the amendment is sought is imperative for proper and effective adjudication of the case;

2) application for amendment is bona fide;

3) amendment should not cause any prejudice to the other side which cannot be compensated adequately in terms of money;

4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

5) the proposed amendment constitutionally or fundamentally does not change the nature and character of the case; and

6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

Placing reliance on the said judgment specifically the points mentioned above in para 13 as were discussed by Hon'ble Supreme Court in case of Revajeetu Builders and Developers Vs. Narayanaswamy & Sons, (2009) 10 SCC 84.

It is submitted that amendment should have been allowed. After hearing learned counsel for the petitioner and going through the available record so also the judgment of Hon'ble Supreme Court cited above in case of Signature Not Verified SAN

Chakreshwari Construction Private Limited (supra) issue is that the application Digitally signed by MOHD TABISH KHAN Date: 2022.10.31 11:14:32 IST

under Order 6 Rule 17 is silent about the date of knowledge of defendants' father getting

some property in family partition.

Petitioner has not mentioned the date of knowledge. It is not the case of the petitioner that transfer of premises alleged to be occupied by the defendants was transferred during the pendency of the suit or the appeal there from. No documents was enclosed to show that the said property is in possession of the defendants or is being used by the defendants along with the amendment application. Thus, it is evident that the plaintiff has failed to point out that the amendment sought is imperative for proper and effective adjudication of the case, amendment is bona fide specially when no date of knowledge is given and it is vaguely mentioned in the application that he recently came to know of another property without giving the final details as the source of the knowledge etc. It is also not made out that how refusing amendment would in fact lead to injustice. When tested on the aforesaid hypothesis then impugned order passed by the learned Trial Court cannot be said to suffer from any procedural or legal infirmity so to cause any interference in the supervisory jurisdiction of the High Court. Thus, petition fails and is hereby dismissed.

(VIVEK AGARWAL) JUDGE Tabish

Signature Not Verified SAN

Digitally signed by MOHD TABISH KHAN Date: 2022.10.31 11:14:32 IST