Madhya Pradesh High Court
Brijlal vs Kailash Narayan on 4 July, 2023
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 4 th OF JULY, 2023
MISC. PETITION No. 3300 of 2023
BETWEEN:-
BRIJLAL S/O RAMPRASAD JI JOSHI, AGED ABOUT 83
Y E A R S , OCCUPATION: AGRICULTURIST VILLAGE
GURADIYA TEHSIL KHATEGAON, DISTRICT DEWAS.
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI JITENDRA BHARAT MEHTA, LEARNED COUNSEL)
AND
1. KAILASH NARAYAN S/O SHRIRAM JI JOSHI,
AGED ABOUT 75 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE GURADIYA TEHSIL
KHATEGAON DISTRICT DEWAS (MADHYA
PRADESH)
2. GOPAL KRISHNA S/O SHRIRAM JI JOSHI, AGED
ABOUT 70 YEARS, OCCUPATION: AGRICULTURE
R/O VILLAGE GURADIYA TEHSIL KHATEGAON,
DISTRICT DEWAS (MADHYA PRADESH)
3. MANI SHANKAR S/O RAMNARAYAN JI JOSHI,
AGED ABOUT 70 YEARS, OCCUPATION:
PENSIONER R/O HOUSE NO. 15, WARD NO. 7
RADHA KRISHNA WARD GADIPURA, HARDA,
(MADHYA PRADESH)
4. ANIL S/O RAM NARAYAN JOSHI, AGED ABOUT 50
YEAR S, OCCUPATION: SERVICE R/O OPPOSITE
AYUSH HIGHER SECONDARY SCHOOL, CHANDAN
NAGAR INDORE (MADHYA PRADESH)
5. SUNIL S/O RAMNARAYAN JOSHI, AGED ABOUT 45
YEARS, OCCUPATION: SERVICE R/O MUKHERJEE
NAGAR, RAISEN DISTRICT RAISEN (MADHYA
PRADESH)
6. PRAMILA BAI D/O RAMNARAYAN JOSHI, W/O
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 04-07-2023
18:19:19
2
SURESH DUBE VAIDYA DEAD THROUGH LEGAL
REPRESENTATIVES PRASHANT S/O SURESH
DUBE, AGED ABOUT 35 YEARS, R/O KARAHI
TEHSIL MANDALESHWAR DISTRICT KHARGONE
(MADHYA PRADESH)
7. BASANT S/O RAMNARAYAN JOSHI DEAD
THROUGH LRS VIDYA W/O BASANT JOSHI, AGED
ABOUT 55 YEARS, OCCUPATION: HOUSEHOLD R/O
66, KRISHNA PARISAR, BEHIND PARMESHWAR
GARDEN, INDORE ROAD, UJJAIN (MADHYA
PRADESH)
8. BASANT S/O RAMNARAYAN JOSHI DEAD
THROUGH LRS NITISH S/O BASANT JOSHI, AGED
ABOUT 35 YEARS, OCCUPATION: SERVICE R/O 66,
KRISHNA PARISAR, BEHIND PARMESHWAR
GARDEN, INDORE ROAD, UJJAIN (MADHYA
PRADESH)
9. BASANT S/O RAMNARAYAN JOSHI DEAD
THROUGH LRS NEERAJ S/O BASANT JOSHI, AGED
ABOUT 35 YEARS, OCCUPATION: SERVICE R/O 66,
KRISHNA PARISAR, BEHIND PARMESHWAR
GARDEN, INDORE ROAD, UJJAIN (MADHYA
PRADESH)
10. BASANT S/O RAMNARAYAN JOSHI DEAD
THROUGH LRS NIDHI D/O BASANT W/O NILESH
TRIVEDI, AGED ABOUT 38 YEARS, OCCUPATION:
HOUSEHOLD R/O 3/159, GANESH TALAB, BEHIND
MODI COLLEGE KOTA (RAJASTHAN)
11. SHIV PRASAD S/O MOTILAL JOSHI DEAD
THROUGH LRS. JAGDISH S/O SHIV PRASAD JI
JOSHI, AGED ABOUT 65 YEARS, OCCUPATION:
PENSIONER R/O HOUSE NO. 27, NARMADA
COLONY, KHATEGAON, DISTRICT DEWAS
(MADHYA PRADESH)
12. RAJENDRA PRASAD S/O SHYAMLAL JOSHI
(ADOPTED FATHER,) R/O PANDIT RAVI SHANKAR
SHUKLA COLONY, NEAR GURUDWARA, RAILWAY
STATION ROAD, DEWAS (MADHYA PRADESH)
13. HARIPRASAD S/O MOTILAL JOSHI DEAD
THROUGH LRS. RAJESH S/O HARIPRASAD JOSHI,
AGED ABOUT 50 YEARS, R/O WARD NO. 7,
VITTHAL NAGAR, JASWADI ROAD, KHANDWA
(MADHYA PRADESH)
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 04-07-2023
18:19:19
3
14. COLLECTOR / DISTRICT MAGISTRATE STATE OF
M.P. DIST. DEWAS (MADHYA PRADESH)
.....RESPONDENTS
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition is filed by the defendant No. 1 under Article 226 of
the Constitution of India challenging the order dated 19.04.2023 passed by 2nd
Civil Judge, Senior Division, Khategaon, Dist. Dewas in Civil Suit No. 43/21
whereby the application filed under Order 6 Rule 17 CPC by the
plaintiff/respondents No. 1 & 2 for amendment in the suit has been allowed.
2) The respondents plaintiffs have filed a suit for declaration of title,
permanent injunction and correction in the revenue record. The plaintiffs sought
following amendment in the relief clause:-
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vf/kxzfgr dh xbZ gS blfy;s mDr jdcs ds laca/k oknhx.k ekuuh; U;k;ky;
ls dksbZ Hkh lgk;rk ugh pkg jgs gS A blfy;s oknhx.k ekuuh; U;k;ky;
ds le{k izLrqr bl okn i= ds pj.k dzekad 18 ds mipj.k&v ds var esa ;g
tksM+uk pkgrk gS fd ** losZ ua- 32 esa ls jk"Vªh; jktekxZ izkf/kdj.k }kjk
vf/kxzfgr jdck 0-06 gs- dks foyksfirk fd;k tkus dh vuqefr nh tkos **
rFkk mipj.k &c dks foyksfirk dj ;g la'kks/ku djkuk pkgrk gS fd ** losZ
ua- 32 dqy jdck 4-41 gs- essa ls jk"Vªh; jktekxZ izkf/kdj.k }kjk vf/kxzfgr
jdck 0-06 gs- dks NksM+dj rFkk losZ ua- 46 iSfd jdck 0-59 gs- d`f"k Hkwfe esa
muds vkf/kiR; esa izfroknhx.k }kjk u rks Lo;a vkSj u gh muds fdlh
lg;ksxh;ks ds }kjk csn[ky djus dk iz; kl djs bl vk'k; dh lgk;rk
oknhx.k ds i{k esa ,oa izfroknhx.k dzekad 01 yxk;r 10 ds fo:) iznku
dh tkosA
3) By the impugned order, the trial Court has allowed the said
application mainly on the ground that the proposed amendment does not
change the nature of the suit.
4) Counsel for the petitioner submits that the trial Court has erred while
allowing the application and the order is contrary to proviso to Order 6 Rule 17
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 04-07-2023
18:19:19
CPC as the respondent/plaintiff has failed to show any diligence in filing the
amendment application before commencement of the trial and the amendment
has been sought to be filled the lacuna. In support of his submission, he has
placed reliance on the judgment passed by the Apex Court in the case of
Ajendraprasadji N. Pandey & Anr. vs. Swami Keshavprakeshdasji N. &
Ors. (2006) 12 SCC Page 1 and Vidyabai & Ors. vs. Padmalatha & Anr.
AIR 2009 SC 1433.
5) After hearing learned counsel for the petitioner and upon perusal of the
plaint and the amendment sought, I do not find any illegality or perversity in the
order impugned. The proviso is an exception to the main clause and the main
clause of Order 7 reads 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 amendment shall be made as may be
necessary for the purpose of determining the real questions in controversy
between the parties. The relevant provision of Order 6 Rule 17 CPC is
reproduced as under :-
17. Amendment of pleadings.- 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:
Provided that no application for amendment shall be allowed
after the trial has commenced, unless the Court comes to the
conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of trial.
6) The phrase ''after the commencement of the trial'' has been considered
in number of judgments by the Apex Court. In the case of Mohinder Kumar
Mehra vs. Roop Rani Mehra & Ors. (2018) 2 SCC 132, the Apex Court held
that the amendment application can be allowed if after the commencement of
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 04-07-2023
18:19:19
the trial if no prejudice caused to the other side. 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. 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).
7) 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].
8) Further, a Co-ordinate Bench of this Court in the case of Ashutosh
Dubey and another vs. Tilak Grih Nirman Sahakari Samiti Maryadit,
Bhopal and another, 2004 (2) MPHT 14 held that supervisory jurisdiction
under Article 227 of the Constitution of India is exercised for keeping the
subordinate courts within the bounds of their jurisdiction. When a subordinate
Court has assumed a jurisdiction which it does not have or has failed to
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 04-07-2023
18:19:19
exercise jurisdiction which it does have or the jurisdiction through available is
being exercised by the Court in a manner not permitted by law and failure of
justice or grave injustice has occasioned thereby, the High Court may step in to
exercise its supervisory jurisdiction. Be it a writ of certiorari or the exercise of
supervisory jurisdiction, none is available to correct mere errors of fact or of
law unless the following requirements are satisfied - (i) the error is manifest and
apparent on the fact of the proceedings such as when it is based on clear
ignorance or utter disregard of the provisions of law; and (ii) a grave injustice or
gross failure of justice has occasioned thereby.
9) 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
soumya
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 04-07-2023
18:19:19
