Manabai W/O Babulal Deswali vs Ramniwas
2023 Latest Caselaw 11497 MP

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IN THE      HIGH COURT OF MADHYA PRADESH
                  AT I N D O R E
                         BEFORE
             HON'BLE SHRI JUSTICE HIRDESH

                 ON THE 24th OF JULY, 2023


               MISC. PETITION No. 2721 of 2023

BETWEEN:-
MANABAI W/O BABULAL DESWALI D/O RAMNIWAS DESWALI, AGED
ABOUT 52 YEARS, OCCUPATION: HOUSEHOLD WORK AND
AGRICULTURE WORK GRAM SUNDREL TEHSIL SATWAS DISTRICT
DEWAS (MADHYA PRADESH)
                                                 .....PETITIONER
(MS REKHA SHRIVASTAVA, LEARNED COUNSEL FOR THE PETITIONER )

AND
   RAMNIWAS S/O NARAYAN DESWALI, AGED ABOUT 72 YEARS,
1. OCCUPATION: AGRICULTURE GRAM SUNDREL TEHSIL SATWAS,
   DISTRICT DEWAS (MADHYA PRADESH)
   GOVIND S/O RAMNIWASS DESWALI, AGED ABOUT 49 YEARS,
2. OCCUPATION: AGRICULTURIST GRAM SUNDREL TEH. SATWAS, DIST.
   DEWAS (MADHYA PRADESH)
   GHANSHYAM S/O RAMNIWAS, AGED ABOUT 47 YEARS, OCCUPATION:
3. AGRICULTURIST GRAM SUNDREL TEH. SATWAS, DIST. DEWAS
   (MADHYA PRADESH)
   RAMESHWAR S/O RAMNIWAS, AGED ABOUT 39 YEARS, OCCUPATION:
4. AGRICULTURIST GRAM SUNDREL TEH. SATWAS, DIST. DEWAS
   (MADHYA PRADESH)
   JAGDISH S/O RAMNIWAS, AGED ABOUT 36 YEARS, OCCUPATION:
5. AGRICULTURIST GRAM SUNDREL TEH. SATWAS, DIST. DEWAS
   (MADHYA PRADESH)
   DWARKA S/O RAMNIWAS, AGED ABOUT 32 YEARS, OCCUPATION:
6. AGRICULTURIST GRAM SUNDREL TEH. SATWAS, DIST. DEWAS
   (MADHYA PRADESH)
   GAYATRI BAI D/O RAMNIWAS, AGED ABOUT 42 YEARS, OCCUPATION:
7. HOUSEWORK GRAM DHURIYA TEH. KANNOD, DIST. DEWAS
   (MADHYA PRADESH)
8. PAPPI BAI W/O RAMNIWAS, AGED ABOUT 34 YEARS, OCCUPATION:
   HOUSEWORK GRAM BHUWANA TEH. SATWAS DIST. DEWAS
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   (MADHYA PRADESH)
   SMT. GULABBAI W/O RAMNIWAS, AGED ABOUT 69 YEARS,
9. OCCUPATION: HOUSEWORK GRAM SUNDREL TEH. SATWAS, DIST.
   DEWAS (MADHYA PRADESH)
    MADHYA PRADESH SHASAN DWARA COLLECTOR DEWAS DIST.
10.
    DEWAS (MADHYA PRADESH)
                                                          .....RESPONDENTS
(SHRI VINAY SARAF, SENIOR ADVOCATE WITH SHRI RIZWAN KHAN,
LEARNED COUNSEL FOR THE RESPONDENT [R-1].

MS VINITA DWIVEDI, LEARNED PANEL LAWYER APPEARING ON BEHALF
OF ADVOCATE GENERAL[R-10])
____________________________________________________

      This petition coming on for order this day, the court passed the
following:


                                   ORDER

The petitioner has filed this present petition under Article 227 of the Constitution of India for setting aside the order dated 21.04.2023 (Annexure P-9) passed by II Civil Judge, Junior Division, Kannod, District- Dewas in Civil Suit No.61A/21.

2. The brief facts of the case are that the petitioner/plaintiff filed a civil suit before the trial court for declaration, partition and possession of the suit land. She has stated that she is the daughter of the respondent No.1 and her mother (Gulab Bai) is the second wife of the respondent No.1. The respondent No.9 is the first wife of respondent No.1 and respondent Nos.2 to 8 are the children of respondent Nos.1 and 9. She claimed that all the lands mentioned in para No.2 of the plaint are ancestral property of the respondent No.1, therefore, the plaintiff has vested birth right on these properties.

3. After filing of the written statement in the matter, the plaintiff sought

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an amendment by way of filing an application under Order 6 Rule 17 of CPC to add the following fact at the end of para No.1 and after para 1 (v) "v& oknpj.k 1 ds vUr es fuEukuqlkj tksMus okon btktr nh tkos %& izfroknh dz- 1 dh f}rh; ifRUk cksjhljkl dh xqykcckbZ uked FkhA bl xqykcckbZ dks izfroknh dz-1 ds lalxZ ls oknh;k dk tUe gqvk gS vkSj oknh;k dh f'k{kk mlds firk izfroknh dz-1 jkefuokl ds uke ls gh gqbZ gS] bl okon iz/kku ikBd 'kkldh; 'kkyk cksjhljk; dk izek.k i= oknh;k us izLrqr fd;k gSA lkFk gh oknh;k izfroknh dz-1 dh iq=h gS] bl okon xzke iapk;r dk izek.ki= Hkh oknh;k us izLrqr fd;k gSA oknh;k dh ekrk dk LoxZokl fnukad 13@02@2020 dks gks tkus ij mldk 'kksd lans'k Hkh izfroknh dz-1 ds uke ls tkjh fd;k x;k gS vkSj mldk uqdrk ikuh ?kkV ixMh iaxrh vkfn izfroknh dz-1 ds }kjk gh dh xbZ gSA

c& oknpj.k 2 ds vUr es fuEukuqlkj tksMus okon vkns'k nsus dh d`ik djsa %& canksoLr ds iwoZ mDRk Hkwfe dk losZ dz- 38] 40@2] 9@1] 106] 316@2] 316@2] 320@13 o 316@2 jgk gSA"

4. The defendants opposed the application filed by the plaintiff before the trial court. After hearing both the parties, the trial court rejected the application filed under Order 6 Rule 17 of CPC on the ground that the proposed amendment is the subject matter of the evidence and the same can be done only after taking evidence.

5. The petitioner has filed this petition on the ground that the order of the trial court is erroneous and liable to be set aside. These amendments

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shall not change the basic structure of the suit, hence, the order of the trial court be set aside and petitioner may be permitted to incorporate such amendments.

6. Learned counsel for the defenders submitted that the trial court has rightly rejected the application.

7. Heard the learned counsel for the parties and perused the order passed by the trial court.

Order 6 Rule 17 of the CPC 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:

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."

8. On perusal of the impugned order (annexure P-9), it is found that the trial court has accepted the document and rejected the amendment application on the ground that it is the matter of evidence. It is settled principle that the evidence without pleadings has no values. In the present case, evidence is yet to be started. On perusal of the application it is found that no new facts are being tried to be inserted in the pleadings it is just elaborating the facts pleaded earlier in para 1. So it is found that no prejudice is likely to be caused to the defendants and it is just and proper amendment.

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9. Learned counsel for the defendants has placed reliance upon the judgment delivered by the Apex Court in the case of Vidyabai and others Vs. Pradmalatha and another, 2009 (2) SCC 409.

The facts in the aforesaid case are different. The case was fixed for cross examination after filing the affidavit of evidence. But in the present case evidence are yet to be started so this citation will not give any help to the defendants.

10. Learned counsel for the defendants has again placed reliance upon the judgment delivered by the Apex Court in the case of Rajkumar Gurawara (Dead) through LRs Vs. S.K. Sarwagi and Company Private Limited and another, 2008 (14) SCC 364.

11. After perusal of the order of the trial court, it is found that there is no prejudice caused to the defendants and the amendment is just and proper. No new facts have been inserted by the petitioner so the aforesaid citation will give no help to the defendants.

12. So as per the above discussion, it has been found that the trial court has wrongly rejected the application under Order 6 Rule 17 of CPC filed by the petitioner. Hence, the impugned order is set aside and the petitioner is permitted to complete the amendments in her pleadings. The trial court is directed to give time to the petitioner to incorporate the facts in the pleadings and after the amendment, the defendants will have right to file consequential reply to the amendments.

13. In view of the aforesaid, the present petition is disposed of.

(HIRDESH) JUDGE N.R.

Digitally signed by NARENDRA KUMAR RAIPURIA Date: 2023.07.25 19:42:52 +05'30'