Subhash Kumar Sojatia vs Devilal Dhakad
2023 Latest Caselaw 2916 MP

                                                       1
                                    IN THE HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                     EP No. 1 of 2019
                                      (SUBHASH KUMAR SOJATIA Vs DEVILAL DHAKAD AND OTHERS)



                          Dated : 17-02-2023
                                Shri Ravindra Singh Chhabra - Senior Advocate with Shri Aman
                          Arora - Advocate for petitioner.
                                Shri Rohit Kumar Mangal - Advocate for respondent No.1.

Heard on IA.No.1054/2023, which is an application under Order VI Rule 17 of CPC seeking amendment in written statement of respondent No.1.

Learned counsel for the respondent No.1 submits that the petitioner has encroached upon the government land under the garb of Trust constituted in the name of his father, therefore, these proposed amendments are necessary for proper adjudication of this petition. These pleadings were not available at the time of filing of the written statement and are based upon the subsequent events. These pleadings are material facts in connection with the relief sought by the petitioner. Hence, he prays that respondent No.1 be permitted to incorporate the proposed amendment in his written statement.

Per contra, learned counsel for the petitioner opposed the same prayer and prays for its rejection. In support of his contention he placed reliance upon the judgments delivered in the case of Jagan Nath Vs. Chander Bhan and Others reported in (1988) 3 SCC 57, North Eastern Railway Administration Vs. Bhagwan Das reported in (2008) 8 SCC 511 and Shivaji Laxman Sahane Vs. Jaywantrao Jadhav reported in (2013) 6 MAH LJ 560.

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 2/21/2023 3:36:44 PM

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE EP No. 1 of 2019 (SUBHASH KUMAR SOJATIA Vs DEVILAL DHAKAD AND OTHERS)

Heard learned counsel for the parties and perused the record. Hon'ble the apex Court in the case of Baldev Singh and Others Vs. Manohar Singh and Another reported in (2006) 6 SCC 498 in paragraph Nos.9 and 17 has held as under:-

"9. Keeping this principle in mind, let us now consider the provisions relating to amendment of pleadings. Order 6 Rule 17 of the Code of Civil Procedure deals with amendment of pleadings which provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings 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. A bare perusal of this provision, it is pellucid that Order 6 Rule 17 of the Code of Civil Procedure consists of two parts. The first part is that the Court may at any stage of the proceedings allow either party to amend his pleadings and the second part is that such amendment shall be made for the purpose of determining the real controversies raised between the parties. Therefore, in view of the provisions made under Order 6 Rule 17 of the CPC it cannot be doubted that wide power and unfettered discretion has been conferred on the Court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the Court just and proper. While dealing with the prayer for amendment, it would also be necessary to keep in mind that the Court shall allow amendment of pleadings if it finds that delay in disposal of Suit can be avoided and that the suit can be disposed of expeditiously. By the Code of Civil Procedure (Amendment) Act, 2002 a proviso has been added to Order 6 Rule 17 which restricts the Courts from permitting an amendment to be allowed in the pleadings either of the parties, if at the time of filing an application for amendment, the trial has already commenced. However, Court may allow amendment if it is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. So far as proviso to Order 6 Rule 17 of the Code of Civil Procedure is concerned, we shall deal with it later.

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 2/21/2023 3:36:44 PM

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE EP No. 1 of 2019 (SUBHASH KUMAR SOJATIA Vs DEVILAL DHAKAD AND OTHERS)

17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings."

The Hon'ble apex Court in the case of Andhra Bank Vs. ABN Amro Bank N.V. and Others reported in (2007) 6 SCC 167 has held that delay is no ground to refuse the prayer for amendment. It is further held that while allowing the application for amendment of the pleading, the Court can not go into the question of merit of such amendment. The only question at the time of consideration of the amendment of the pleading would be whether such amendment would be necessary for decision of real controversy between the parties in the suit.

From perusal of the proposed amendment, it appears that proposed amendments are based upon the subsequent events and on the basis of the order dated 18/12/2022 passed by the Naib Tehsildar, Tehsil

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 2/21/2023 3:36:44 PM

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE EP No. 1 of 2019 (SUBHASH KUMAR SOJATIA Vs DEVILAL DHAKAD AND OTHERS)

Bhanpura such pleadings were not available at the time of filing of written statement, therefore, proposed amendment appears to be necessary for proper adjudication of the present election petition.

Therefore, IA.No.1054/2023 is allowed and respondent No.1 is permitted to incorporate the proposed amendment in the written submission. Let necessary amendment be carried out within seven working days. The petitioner is free to file appropriate application for consequential amendment on the basis of the amendment in the written statement.

Both the parties are also heard on IA.No.1055/2023, which is an application under Order XVIII Rule 1-A of the CPC for taking additional documents on record.

Learned counsel for the respondent No.1 submits that during the pendency of the present petition, respondent No.1 came to know regarding initiation of proceeding against petitioner under Section 248 of M.P. Land Revenue Code. Naib Tehsildar has passed an order dated 18/12/2022 and documents relating to the aforesaid encroachment is necessary for proper adjudication of this petition. Hence, it is prayed that application be allowed and documents be taken on record.

Learned counsel for the petitioner orally opposed the aforesaid prayer and prays for its rejection.

Respondent No.1's application for amendment in the written statement has been allowed and the aforesaid documents are related with the grounds taken by the respondent No.1 by way of amendment,

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 2/21/2023 3:36:44 PM

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE EP No. 1 of 2019 (SUBHASH KUMAR SOJATIA Vs DEVILAL DHAKAD AND OTHERS)

therefore, documents filed by the respondent No.1 is necessary for proper adjudication of the matter. Hence, IA.No.1055/2023 is allowed and documents filed with this application are taken on record.

Now the case is fixed for evidence of respondent No.1. Respondent No.1 is directed to produce his evidence as per the list of witnesses submitted by him at earlier point of time. Respondent No.1 is directed to keep one witness present for evidence on the next date of hearing.

List the matter for evidence on 28/02/2023. Matter will be taken up for hearing at 02:15 PM.

(ANIL VERMA) JUDGE Tej

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 2/21/2023 3:36:44 PM