Madhya Pradesh High Court
Shri Suhail Aslam vs New Kohefiza Rehwasi Kalyan ... on 12 July, 2023
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 12 th OF JULY, 2023
MISC. PETITION No. 1527 of 2017
BETWEEN:-
SHRI SUHAIL ASLAM S/O LATE SHRI MOHAMMAD
ASLAM, AGED ABOUT 42 YEARS, R/O 27-B, GULSHAN
COTTAGE, AMEERGANJ, SHAHJAHANABAD, BHOPAL
(M.P.)
.....PETITIONER
(BY SMT. SHOBHA MENON -SENIOR ADVOCATE WITH SHRI BHARAT
DEEP SINGH BEDI-ADVOCATE)
AND
1. NEW KOHEFIZA REHWASI KALYAN SAMITI
BHOPAL THR. ITS CHAIRMAN SHRI SAIYAD
NASRAT ALI S/O LATE SHRI MOHAMMAD SHAFIQ
AGED ABOUT 51 YEARS, R/O A/A 51 YEARS HOUSE
NO. D-12, B.D.A. COLONY, KOHEFIZA, BHOPAL
(M.P.)
2. M/S LVORY BUILDERS AND DEVELOPERS
BHOPAL THROUGH PARTNER SHRI MOHAMMAD
AASIF S/O SHRI MOHAMMAD ISRAIL R/O B. P 74
LAKE PEARL GARDEN AIRPORT ROAD (MADHYA
PRADESH)
3. SHRI SHYAM KUMAR HOTCHANDANI S/O HRI
KODANMAL HOTCHANDANI 257 PANCHVATI
COLONY AIRPORT ROAD BHOPAL (MADHYA
PRADESH)
4. BHOPAL DEVELOPMENT AUTHORITY THROUGH
CHAIRMAN BHOPAL (MADHYA PRADESH)
5. MUNICIPAL CORPORATION COMMISSIONER
SADAR MANZIL BHOPAL (MADHYA PRADESH)
6. SMT. SASEEM ASLAM W/O LATE SHRI
MOHAMMAD ASLAM R/O 27-B GULSHAN
COTTAGE, AMEERGANJ SHAHJAHANABAD (M.P)
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 7/13/2023
9:57:07 AM
2
7. SHRI TAZWAR ASLAM S/O LATE SHRI
MOHAMMAD ASLAM R/O 27-B GULSHAN
COTTAGE, AMEERGANJ SHAHJAHANABAD
(MADHYA PRADESH)
8. SMT. JUHI SUHEL D/O LATE SHRI MOHAMMAD
ASLAM W/O SOHAIL HAFIZ, R/O HOUSE NO. 6
NEAR ARCHBISHP HOUSE AHMDABAD PLACE
ROAD KOHEFIZA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PRADEEP ACHARYA -ADVOCATE WITH SHRI RAJESH PATEL -
ADVOCATE FOR RESPONDENT NO.1, SHRI DARSHAN SONI- ADVOCATE
FOR RESPONDENT NO.5, NONE FOR OTHER RESPONDENTS THOUGH
SERVED)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition under Article 227 of Constitution of India is listed in the
heading of heldup matter. By this petition the order dated 15.11.2017 (Annexure
P-10) passed by the trial court allowing the application under Order 6 Rule 17
of the C.P.C filed by the plaintiff has been assailed.
Counsel for the petitioner submits that the application filed by the plaintiff
under Order 6 Rule 17 of C.P.C does not fulfill requirement of the mandatory
provision as provided under the proviso attached with the respective provision
i.e Order 6 Rule 17 of C.P.C. The application for amendment has been moved
after commencement of trial. The affidavit of statement of the plaintiff under
Order 18 Rule 4 of C.P.C had already been filed. Thereafter application, if any
is filed under Order 6 Rule 17 of C.P.C, the court has to see whether
amendment which is being sought by the plaintiff could have been brought to
the notice of the court earlier, if that is so, then the court has to see what due
diligence has been shown by the plaintiff for bringing those facts on record. In
Signature Not Verified
absence of any explanation of due diligence, the application could not have
Signed by: TARUN KUMAR
SALUNKE
Signing time: 7/13/2023
9:57:07 AM
been allowed. She relied upon decision reported in (2018) 2 SCC 87
(Rajkumar Bhatia Vs. Subhash Chander Bhatia). She submits that the
application ought to have been dismissed by the trial court.
Shri Acharya appearing for the respondent no.1 submits that the
application of amendment has been moved for bringing the facts on record
relating to the subsequent development took place after filing plaint and
therefore, those facts could not have been brought by the plaintiff on record
earlier. He submits that although there is some delay in moving the application
of amendment but that delay cannot be the sole ground for rejecting the
application and trial court has accordingly compensated the defendant imposed
cost of Rs.5000/-, which has been deposited by respondent no.1. He submits
that only because there is some delay in moving the application, the same could
not have been rejected and proviso appended to the respective provision is not
mandatory and application for amendment can be allowed considering the facts
if necessary for proper adjudication of the case. Therefore, the order passed
by the court below is proper and that does not call for any interference.
Considering the submissions made by the counsel for parties and on
perusal of record, the application filed by the plaintiff/respondent under Order 6
Rule 17 of C.P.C contains the fact in regard to the continous construction
alleged to be authorized after filing the plaint.
Since that development took place during the pendency of the suit, which
filed in the year 2013 and an affidavit of the plaintiff under Order 18 Rule 4 of
C.P.C filed in the year 2015 but no cross examination of the plaintiff got done
and an application of amendment filed in the year 2017. The facts mentioned in
the application, looking to the nature of the suit, are necessary to be brought on
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 7/13/2023
9:57:07 AM
record for proper adjudication of the suit and also the same do not change the
nature of the suit. Although Smt. Shobha Menon relied upon a judgment of the
Supreme Court in case of Rajkumar Bhatia (supra) but the Supreme Court in
that judgment also considered the basic object of bringing proviso attached with
Order 6 Rule 17 of C.P.C saying that the amendment brought with a view to
shortage litigation and speedy of trial of the civil suit. It is also observed that the
respective provision permit amendment in the pleading at any stage of the
proceeding, but a limitation has been engrafted by means of proviso to the
effect that no application for amendment shall be allowed after trial has
commenced. The object of adding proviso is to curtail delay and expedite
adjudication of the case. Not permitting the amendment after leading the
evidence that too on basis of pleading in a case, no new case be allowed to set
up by amendment but proviso contains an exception by reserving the court
jurisdiction to order for permitting the party to amend pleading on satisfying that
inspite of due diligence the party could not have raised the matter before
commencement of trial. In this case, the amendment brought by plaintiff is not
at the later stage of trial because plaintiff evidence is still not over.
The Court got himself satisfied that the amendment is necessary and
related to the incident which occurred after filing the plaint and therefore to
avoid multiplicity of litigation the amendment can be allowed and simultaneously
compensated the defendant imposing cost of Rs.5000/- upon the plaintiff.
The Supreme Court in the case of Andhra Bank Vs. ABN AMRO N.V
and others reported in AIR 2007 SC 2511 has observed that amendment
cannot be denied only on the ground of delay. The Court has also observed if
amendment is necessary for proper adjudication of the case, the court can allow
the same even after commencement of the trial. Likewise in case of
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Signed by: TARUN KUMAR
SALUNKE
Signing time: 7/13/2023
9:57:07 AM
Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (dead)
& others reported in (2007) 6 SCC 737, the Supreme Court has observed that
amendment seeking to make claim more precise so as to enable the court to
adjudicate upon it more satisfactorily ought to be allowed and defendant can be
compensated for delay by awarding the cost and defendant can also file
consequential amendment in the written statement.
From perusal of the order impugned, it does not appear that the court has
exceeded it's jurisdiction, committed any illegality and therefore, exercising
supervisory jurisdiction under Article 227 by this Court does not deem fit to
dislodge order of the trial court, which otherwise does not suffer from any
irregularity. Petition is therefore dismissed. The order impugned in the opinion
of this Court does not call for any interference.
(SANJAY DWIVEDI)
JUDGE
tarun
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 7/13/2023
9:57:07 AM
