Madhya Pradesh High Court

Sunil Kumar Lodhi vs Smt. Snehlata Rao W/O Shri ... on 11 August, 2023

Author: Sanjay Dwivedi

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 11th OF AUGUST, 2023
MISC. PETITION No.5340 of 2022

BETWEEN:-

1. SUNIL KUMAR LODHI S/O LATE SHRI NARAD
SINGH LODHI, AGED ABOUT 37 YEARS
2. PRAHLAD LODHI S/O LATE SHRI NARAD SINGH
LODHI, AGED ABOUT 41 YEARS
3. BIHARI LAL LODHI S/O LATE SHRI NARAD
SINGH LODHI, AGED ABOUT 50 YEARS
ALL THREE R/O H.NO.880, TRIPURI WARD,
VILLAGE SAGDA, AMKHERA, P.S. TILWARA,
DISTRICT JABALPUR (MP)
4. SMT. GANGA BAI LODHI W/O SHRI PAVAN
LODHI, AGED ABOUT 25 YEARS R/O VILLAGE
BILPURA, P.O. RICHAI, P.S. RANJHI, DISTRICT
JABALPUR (MP)
5. SMT. GHILLA BAI LODHI W/O LATE SHRI NARAD
SINGH LODHI AGED ABOUT 60 YEARS, R/O
NEARBY HANUMAN TEMPLE, TRIPURI WARD,
P.O. GARHA, P.S. TILWARA, DISTRICT JABALPUR
(MP)
6. SMT. KESHAR BAI LODHI W/O SHRI SULLI LAL
LODHI, AGED ABOUT 60 YEARS, R/O H.NO.122,
VILLAGE AAMAHINAUTA, P.S. BHEDAGHAT,
DISTRICT JABALPUR (MP)
.....PETITIONERS

(BY SHRI SANKALP KOCHAR - ADVOCATE)

AND

1. SMT. SNEHLATA RAO W/O SHRI RAJENDRA RAO
(DEAD)
1A. RAJENDRA RAO S/O LATE SHANKAR LAL RAO,
2

AGED ABOUT 50 YEARS
2. SHIVAM RAO S/O RAJENDRA RAO, AGED ABOUT
25 YEARS
BOTH R/O H.NO.1616, HIRDAY NAGAR,
GUPTESHWAR WARD, DISTRICT JABALPUR (MP)
3. ABHITESH DUBEY S/O SHRI C.N. DUBEY, AGED
ABOUT 55 YEARS, R/O STATE BANK COLONY,
DISTRICT JABALPUR (MP)
4. STATE OF MADHYA PRADESH THROUGH
COLLECTOR, JABALPUR (MP)
......RESPONDENTS

(RESPONDENT NO.3 BY SHRI D.K. DIXIT - ADVOCATE)
..............................................................................................................................................................................
Reserved on : 04.07.2023
Pronounced on : 11.08.2023
..............................................................................................................................................................................

This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
ORDER

Since pleadings are complete and learned counsel for the parties are ready to argument the matter, therefore, it is heard finally.

2. By the instant petition filed under Article 227 of the Constitution of India, the petitioners/plaintiffs are challenging the legality, validity and propriety of order dated 15.09.2022 (Annexure-P/4) passed by the Court of 08th Civil Judge Junior Division, Jabalpur in RCSA No.6335/2020 whereby the trial Court has rejected their application filed under Order 6 Rule 17 of the Code of Civil Procedure.

3. As per facts of the case, the petitioners/plaintiffs had filed a suit for declaration of ownership of land bearing Khasra No.1/1 measuring

0.345 hectares and recovery of possession along with a mandatory injunction to remove the construction raised and permanent injunction to restrain alienation/creation of encumbrance on the property in dispute. However, according to the petitioners a property admeasuring 1.356 hectares belonged to Ghinau @ Ghisru Lodhi and Ramdas Lodhi. On partition between the two in the 1978, the property in dispute came to be vested with Ghinau @ Ghisru Lodhi (dead -01.08.1985). Ghinau @ Ghisru Lodhi had a wife named Renaka Bai (dead -18.06.1989). The two had a couple of children i.e. Keshar Bai (plaintiff No.6) and Narad Singh Lodhi (dead 30.07.2001). Narad Snigh had a wife named Dhilla Bai (plaintiff No.5) with whom he had four children i.e. Sunil (plaintiff No.1), Prahlad (plaintiff No.2) and Ganga (plaintiff No.4).

(3.1) During pendency of suit, it came to the knowledge of the plaintiffs that the defendants in collusion with the revenue officers fabricated the documents and got their names mutated in the revenue record in the year 2018-19. Not only this, but the defendants had also raised construction over some part of the property in dispute and as such, it was claimed by the plaintiffs that they came to know about the said fact w.e.f. 09.12.2019. It was also claimed by the plaintiffs that on the basis of mutation made in favour of the defendants, they are trying to alienate the property. The plaintiffs had also come to know that in respect of property in dispute, some sale-deeds had already been executed on 25.06.2021 in favour of some of the persons and that fact was necessary to be brought on record and, therefore, they moved an application under Order 6 Rule 17 of the CPC on 20.07.2021 (Annexure-P/3) before the trial Court seeking amendment in the plaint.

(3.2) Opposing the averments made in the application filed under

Order 6 Rule 17, the defendants had filed a reply.

(3.3) Thereafter, the trial Court vide impugned order dated 15.09.2022 (Annexure-P/4) has rejected the application mainly on the ground that the amendment which was sought to be brought on record is barred by limitation. Hence, this petition.

4. Shri Kochar, learned counsel for the petitioners has submitted that the trial Court has rejected the application without appreciating the fact that the amendment sought by the plaintiffs is necessary for fair and proper adjudication of the case. He has further submitted that the trial Court has committed a patent illegality in rejecting the application on the ground that the pleading which is sought to be brought on record is barred by limitation whereas the said aspect could not be considered by Court at the time of considering the amendment application. According to him, the issue with regard to delay at the most can be framed and decided at the time of final decision of the case, but at the threshold, the application could not be rejected on the said ground. To bolster his contention, learned counsel for the petitioners has placed reliance upon the judgments of the Supreme Court viz. (2006) 4 SCC 385 [Rajesh Kumar Aggarwal and others Vs. K.K. Modi and others] and (2015) 6 SCC 557 [Madhukar Sadbha Shivarkar (dead) by legal representatives Vs. State of Maharashtra and others].

5. On the other hand, Shri Dixit, learned counsel for respondent No.3 has opposed the submissions advanced by learned counsel for the petitioners and tried to justify the order passed by the trial Court saying that it is a settled principle of law that amendment sought to be brought on record, if barred by time, then the relief claimed in the application cannot be allowed. According to him, the trial Court has rightly rejected the

application of the plaintiffs. In support of his contention, he has placed reliance upon a case reported in 2022 SCC Online SC 1128 [Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and another].

6. I have heard the rival submissions of learned counsel for the parties and perused the record.

7. On going through the order passed by the trial Court, it is clear that some of the sale-deeds got executed by the defendants in respect of land in dispute. In the application for amendment, it is mentioned that the plaintiffs had acquired the knowledge about those sale-deeds only when the defendants had replied their application filed under Order 39 Rule 1 and 2 of the CPC. However, the reply to the application filed under Order 39 Rule 1 and 2 of the CPC was field by the defendants on 08.09.2020 whereas a copy whereof was delivered to the plaintiffs on 07.01.2021 and then only, they came to know about the said sale-deeds and as such filed the application for amendment on 20.07.2021. The trial Court while rejecting the application has observed that the sale-deeds executed somewhere in the year 1989 and as such, declaration with respect of those sale-deeds cannot be claimed by way of amendment made in the year 2021 as the relief claimed is barred by time. The trial Court has also observed that though the knowledge about those sale-deeds according to the averments made by the plaintiffs was acquired only after receiving the reply, but according to the trial Court it was a bald statement and as such, cannot be accepted. Ultimately, the trial Court has rejected the application saying that the claim raised by the plaintiffs in their application is barred by time.

8. However, I am not satisfied with the reasoning given by the

trial Court for rejecting the application filed under Order 6 Rule 17 of the CPC for the reason that it is a settled principle of law that the amendment application cannot be rejected by the Court only on the ground of limitation because the basic object of brining the amendment has to be considered whether the said amendment is necessary for proper adjudication of the case or not, but this aspect has been overlooked by the trial Court. The Supreme Court in number of cases has observed that if prima facie the relief claimed in the amendment application appears to be barred by time, then instead of rejecting the application, the trial Court should frame an issue about delay and decide the same by recording the statement of the parties. In the case of Rajesh Kumar Aggarwal (supra), the Supreme Court after dealing with the issue as involved in the present case has observed that if any application for amendment is barred by time then that application cannot be rejected on the ground of delay, but the trial Court should observe the basic object of amendment. In the aforesaid case, the Supreme Court has observed as under:-

"16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.

18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the

amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court.

19. While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case."

9. So far as the case of Life Insurance Corporation of India (supra) on which learned counsel for respondent No.3 has placed reliance is concerned, in the said case the Supreme Court has observed that the delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation shall be framed separately for decision. In the aforesaid case, the Supreme Court has observed as under:-

"70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-

pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of

delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) 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. 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, 2022 SCC OnLine Del 1897)"

10. Furthermore, this Court in Writ Petition No.13985 of 2021 [Devendra Sadho Vs. Smt. Pramila Kumar and others] dealing with similar issue as involved in the present case has also observed that instead of rejecting the application for amendment, the Court has to frame issue with regard to claim whether it is barred by time or not and decide the same after recording the evidence of the parties. In the aforesaid case, this Court has observed as under:-

"10. In case of Raghu Tilak (supra), the Supreme Court has held that the plea that relief sought through amendment is barred by limitation and if it was disputed then issue about limitation can be raised after allowing the amendment. Further, the Supreme Court has also considered the object for amendment and observed as under:-

4. In view of the subsequent developments, the appellant filed an application under Order 6, Rule 17, for the amendment of the plaint for adding paras 8 (a) to 8(f) in his plaint. The trial Court rejected his prayer and the revision petition filed against that order was dismissed by the High Court vide order impugned in this appeal, mainly on the ground that the amendment, if allowed, would result in introducing a new case and cause of action. It was further held that as the appellant was seeking recovery of damages, the amendment could not be allowed as it would allegedly change the nature of the suit. It was also observed that the amendment sought was barred by limitation.

5. After referring to the judgments in Charan Das v. Amir Khan, AIR 1921 PC 50 L. J. Leach and Co. Ltd. v.

Jardine Skinner and Company, 1957 SCR 438: (AIR 1957 SC 357), Smt. Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393: (AIR 1974 SC 1126), M/s. Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91: (AIR 1978 SC 84) and various other authorities, this Court in B. K. N. Pillai v. P. Pillai, (1999) 10 JT (SC) 61: (2000 AIR SCW 43: AIR 2000 SC 614) held:(Para 3):

"The purpose and object of Order 6, Rule 17, C. P. C. is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.

6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal

of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for."

11. Considering the aforesaid enunciation of law, I am of the opinion that the trial Court has committed error in rejecting the application filed by the plaintiffs on the ground that it was based upon bald averments. However, as has been discussed in the preceding paragraphs, instead of rejecting the application, the trial Court has to frame the issue of limitation and after recording the statement of the parties on the said issue, should have passed a final order. Under such circumstance, the impugned order dated 15.09.2022 (Annexure-P/4) passed by the trial Court is not sustainable in the eyes of law and it is hereby set aside. Accordingly, the application filed by the petitioners/plaintiffs under Order 6 Rule 17 of the CPC is hereby allowed. The trial Court is directed to give reasonable time to the plaintiffs for carrying out necessary amendment in the plaint.

12. As a result of aforesaid discussion, the petition filed by the petitioners stands allowed.

(SANJAY DWIVEDI) JUDGE Devashish

DEVASHISH MISHRA 2023.08.11 19:11:03 +05'30'