Bhartiya Bhandar vs Shri Mahadev Ji Mandir Trust
2023 Latest Caselaw 1708 MP

                                                  1                                M.P.No.452/2023



                          IN THE HIGH COURT OF MADHYA PRADESH
                                      AT JABALPUR
                                                  BEFORE
                              HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                        ON THE 31st OF JANUARY, 2023
                                           MISC. PETITION No. 452 of 2023

                          BETWEEN:-

                          BHARTIYA BHANDAR PRO. MANISH KUMAR
                          JAIN SON OF SHIR SUSHIL KUMAR JAIN AGED
                          ABOUT 42 YEARS OCCU. BUSINESS R/O 715 GOLE
                          BAZAR NEAR DATT MANDIR JABALPUR
                          DISTRICT JABALPUR (MADHYA PRADESH)
                                                                                .....PETITIONER
                          (BY SHRI JANAK LAL SONI - ADVOCATE)

                          AND

                          SHRI MAHADEV JI MANDIR TRUST THROUGH
                          THE MANAGER/TRUSTEE SHRI KUNJBIHARI
                          SONI SON OF SHRI RAJABHAIYA SONI AGED
                          ABOUT 64 YEARS R/O NEW ANAND JEWELLERS
                          SARAFA   JABALPUR    DISTRICT JABALPUR
                          (MADHYA PRADESH)
                                                                             .....RESPONDENTS
                           (NONE FOR THE RESPONDENT)

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

                          the following:

                                                        ORDER

This petition under Article 227 of the Constitution of India has been filed against the order dated 12.12.2022 passed by XIV Civil Judge Sr. Division Jabalpur, District Jabalpur in Civil Suit No.131-

Signature Not Verified Signed by: VINAY KUMAR BURMAN Signing time: 01-Feb-23 5:41:38 PM

A/2009 by which the application filed by the plaintiff/respondent under Order 6 Rule 17 of CPC for amendment in the plaint has been allowed.

2. It is submitted by the counsel for the petitioner that the suit was filed on 30.04.2009 and the written statement was filed on 07.01.2010. The plaintiff filed its affidavit under Order 18 Rule 4 of CPC on 08.07.2011. On 22.11.2017, the petitioner filed an application under Order 6 Rule 17 for amendment in the written statement which was allowed. About one and half years thereafter, the respondent/plaintiff filed an application on 16.06.2019 under Order 6 Rule 17 of CPC which has been allowed by the impugned order dated 12.12.2022 on the ground that the proposed amendment is consequential in nature. It is submitted by the counsel for the petitioner that the application under Order 6 Rule 17 of CPC filed by the respondent should not have been allowed for the reason that the trial has already commenced, and the affidavits under Order 18 Rule 4 of CPC were already filed by the plaintiff and the documents were also exhibited by the plaintiff on 03.08.2017.

3. To buttress his contention, the counsel for the petitioner has relied upon the judgment passed by a Coordinate Bench of this Court in the case of Kedar Nath and others v. Murari Lal and others, reported in (2015) 3 M.P. Weekly Note 115, Pratap and others v. Ganesh Ram and others reported in (2014) 3 MPHT 212, order passed in the case of Dasrath v. Rajubai decided on 17.06.2014 in W.P.No.1819/2014 as well as in the case of Nirmala Singh and

Signature Not Verified Signed by: VINAY KUMAR BURMAN Signing time: 01-Feb-23 5:41:38 PM

others v. Mahendra Pratap Sharma and others decided on 17.04.2015 in W.P.No.2048/2012.

4. Heard the learned counsel for the petitioner.

5. The basic contention of challenging the impugned order is that the amendment has been allowed after the commencement of the trial and the proposed amendment cannot be said to be a consequential amendment.

6. It is really surprising when the petitioner is hammering upon the impugned order on the ground that it was allowed subsequent to the commencement of the trial as well as subsequent to the marking of the documents as exhibit. As already pointed out the document were exhibited by the plaintiff on 03.08.2017. If the contention of the counsel for the petitioner that after 03.08.2017, the trial Court should not have entertained an application for amendment is accepted then first of all the application for amendment which was filed by the petitioner himself should have been dismissed.

7. The documents were exhibited on 03.08.2017 whereas the petitioner himself filed an application for amendment on 22.11.2017, it appears that the counsel for the petitioner has advanced his arguments without realizing that his arguments will prove a boomerang thereby bringing his amendment under a cloud.

8. The Supreme Court in the case of Life Insurance Corporation of India. Vs. Sanjeev Builders Pvt. Limited decided on 1.9.2022 in Civil appeal No.5909/2022 has held as under:

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

Signature Not Verified Signed by: VINAY KUMAR BURMAN Signing time: 01-Feb-23 5:41:38 PM

(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 a n d 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).

Signature Not Verified Signed by: VINAY KUMAR BURMAN Signing time: 01-Feb-23 5:41:38 PM

(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

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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 and Ors., 2022 SCC OnLine Del 1897)."

9. Thus, the amendment can be allowed provided it is necessary for adjudication of the case.

10. The plaintiff in paragraph-3 of its plaint has specifically stated that the defendant/petitioner has raised additional construction without the permission of the plaintiff and has forged certain documents. If the proposed amendment is seen then it is clear that the

Signature Not Verified Signed by: VINAY KUMAR BURMAN Signing time: 01-Feb-23 5:41:38 PM

entire amendment is clarificatory in nature. In the entire amendment, the plaintiff has confined only to the fact of construction of additional building on the building which was let out to the petitioner/defendant. The plaintiff had already made a specific pleading in the plaint that the defendant has made a substantial change in the rented premises. The counsel for the petitioner could not point out even single line which can be said to be in addition to what has been averred in paragraph-3 of the plaint.

11. It is true that the trial Court has allowed the amendment on the pretext that it is consequential in nature but that is not the sole ground for allowing the application. In the proposed amendment, the plaintiff has also pleaded that after spot inspection was carried out under the orders of trial Court it was found that additional construction has been raised by the defendant. Thus, the trial Court has specifically has held that in view of the subsequent events, the proposed amendment is necessary for the adjudication of the suit.

12. This Court has also come to a conclusion that only the amendment is clarificatory in nature but is also based on the subsequent events which took place during the pendency of the suit. As no case is made out warranting interference, this Court is of the considered opinion that no jurisdictional error was committed by the trial Court by allowing the application. The suit was filed in the year 2010 and even after 12 years, the suit is still at the initial stage. Therefore, trial Court is directed to expedite the suit. The trial Court is directed not to give unnecessary adjournments and must ensure that the time gap between two dates is not more than 4 days.

Signature Not Verified Signed by: VINAY KUMAR BURMAN Signing time: 01-Feb-23 5:41:38 PM

13. The suit must be finally decided within a period of six months from today positively.

14. The office is directed to immediately communicate this order to the Trial Court for necessary information and compliance.

15. The petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE vinay*

Signature Not Verified Signed by: VINAY KUMAR BURMAN Signing time: 01-Feb-23 5:41:38 PM