Madhya Pradesh High Court
Jagdishchandra vs Sunil on 26 July, 2023
Author: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
MISC. PETITION No. 4268 of 2022
BETWEEN:-
JAGDISHCHANDRA S/O SITARAM WAGHE, AGED
ABOUT 68 YEARS, OCCUPATION: BUSINESS R/O
1.
VILLAGE BAJTATTA TEHSIL RAJPUR (MADHYA
PRADESH)
SMT. ANITA SAWNER W/O NARENDRA SAWNER,
AGED ABOUT 51 YEARS, OCCUPATION:
2.
HOUSEWIFE 57, HARIOM NAGAR, DHAR ROAD,
INDORE (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI SIDDHARTH DHARMADHIKARI - ADVOCATE)
AND
SUNIL S/O SITARAM WAGHE, AGED ABOUT 51
YEARS, OCCUPATION: NIL R/O IMLIPURA
1.
RESIDING IN HOUSE OF RADHESHYAM GANWANI
RAJPUR (MADHYA PRADESH)
SARLA KALE W/O GOPAL KALE, AGED ABOUT 56
YEARS, OCCUPATION: HOUSEWIFE GURWA
2.
MOHALLA, IN-FRONT OF GURWA
DHARAMSHALA, BARWAHA (MADHYA PRADESH)
SUNITA W/O SANTOSH DEVRAI, AGED ABOUT 46
YEARS, OCCUPATION: HOUSEWIFE 199,
3. KUDLESHWAR WARD, KHANDWA (MADHYA
PRADESH)
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 28-07-2023
10:15:56
2
STATE OF M.P. THROUGH COLLECTOR BARWANI
4.
(MADHYA PRADESH)
.....RESPONDENTS
( RESPONDENT NO.1 BY SHRI AJAY KUMAR ASSUDANI - ADVOCATE
AND RESPONDENT NO.4 BY SHRI A.S.PARIHAR - PANEL LAWYER)
.................................................................................................................
Reserved on : 10.07.2023
Pronounced on : 26.07.2023
................................................................................................................
This petition having been heard and reserved for orders, coming
on for pronouncement this day, the court passed the following:
ORDER
1. By this petition preferred under Article 227 of the Constitution
of India the petitioners/plaintiffs are challenging the order dated
03.09.2022 passed in Civil Suit No.11-A/2016 by the Civil Judge,
Junior Division, Rajpur, District Barwani whereby their application
under Order 6 Rule 17 of the CPC seeking leave of the Court to amend
their plaint has been rejected.
2. The plaintiffs have instituted an action for declaration of their
2/5th share in the suit lands, for partition of the same and delivery of
separate possession to them. They have inter-alia contended that they
have the aforesaid share in the suit lands which is not being given to
them by the defendants and instead defendant No.1 is claiming title to
the suit lands by virtue of a will executed in his favour by Late
Balkrishna. In the plaint there is also a reference to the order dated
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SARVATE
Signing time: 28-07-2023
10:15:56
23.06.2016 passed by the Tehsildar which as per the plaintiffs is illegal
and affects their interests in the suit lands.
3. The defendants have contested the plaintiffs' claim by filing their
written statement denying their title to the suit lands and have submitted
that defendant No.1 is in lawful possession of the suit lands by virtue of
will executed by Late Balkrishna in his favour and has rightly been
recorded over the same in the revenue records.
4. During course of proceedings before the trial Court the plaintiffs
filed an application under Order 6 Rule 17 of the CPC for amendment
of the plaint to claim relief of declaration that the order dated
23.06.2016 passed by the Tehsildar, Rajpur in null and void and not
binding upon them and for averring that they are also entitled for mesne
profits. It was also sought to be submitted that order dated 23.06.2016 is
illegal. The defendant No.1 contested the application by filing his reply
to the application which has been rejected by the impugned order by
observing that the amendment has been proposed 5 years after filing of
the suit, that no averment has been made as to why the amendment
could not be proposed earlier, that the same is not based upon any
subsequent event and that amendments were made by plaintiffs earlier
but the proposed amendment was not made then.
5. Learned counsel for plaintiffs has submitted that the trial Court
has erred in rejecting the amendment application of the plaintiffs. In the
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SARVATE
Signing time: 28-07-2023
10:15:56
application it was specifically stated that the amendment is extremely
necessary for decision of the case and if the same is not permitted an
irreparable injury would be caused to them. The evidence in the matter
is yet to begin as plaintiffs' witnesses have not yet appeared. The
proceedings were pending for a considerable period of time due to
Corona Virus Pandemic and that the amendment proposed would not
cause any prejudice to the defendants hence ought to be allowed.
6. Per contra, learned counsel for defendant No.1 has supported the
impugned order and has submitted that the suit was instituted in the
year 2016. Thereafter amendments have been made by plaintiffs on
numerous occasions but the amendment as now proposed was never
made then and no reason has been furnished for the delay in proposing
the amendment and as to why the same was not made at the previous
stage. The issues have been framed in the matter hence the trial has
commenced and now the plaintiffs are not entitled to make any
amendment particularly when they have failed to prove their due
diligence. The amendment has been proposed by plaintiffs only for
prolonging the matter. The petition hence deserves to be dismissed.
7. I have heard learned counsel for the parties at length.
8. In Vallabh Electronics V/s. Branch Manager, United Bank of
India (2020) 1 MPLJ 100 relied upon by learned Counsel for plaintiffs
it has categorically been held in paragraph 12, 13 and 14 as under :-
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SARVATE
Signing time: 28-07-2023
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"12. So far as the delay in making the application for amendment of
plaint is concerned, it is well established principle of law that mere
delay cannot be a ground for rejection of the application unless and
until a serious prejudice is caused to the defendants.
13. The Supreme Court in the case of Estralla Rubber v. Dass Estate
(P) Ltd., reported in (2001) 8 SCC 97 has held as under:--
"8. It is fairly settled in law that the amendment of pleadings under
Order 6, Rule 17 is to be allowed if such an amendment is required for
proper and effective adjudication of controversy between the parties
and to avoid multiplicity of judicial proceedings, subject to certain
conditions such as allowing the amendment should not result in
injustice to the other side; normally a clear admission made conferring
certain right on a plaintiff is not allowed to be withdrawn by way of
amendment by a defendant resulting in prejudice to such a right of the
plaintiff, depending on the facts and circumstances of a given case. In
certain situations, a time-barred claim cannot be allowed to be raised
by proposing an amendment to take away the valuable accrued right
of a party. However, mere delay in making an amendment application
itself is not enough to refuse amendment, as the delay can be
compensated in terms of money. Amendment is to be allowed when it
does not cause serious prejudice to the opposite side. This Court in a
recent judgment in B.K. Narayana Pillai v. Parameswaran Pillai after
referring to a number of decisions, in para 3 has stated, thus : (SCC p.
715)
"3. The purpose and object of Order 6, Rule 17, Civil Procedure Code
is to allow either party to alter or amend his pleadings in such manner
and on such terms as may be just. The power to allow the amendment
is wide and can be exercised at any stage of the proceedings in the
interests of justice on the basis of guidelines laid down by various
High Courts and this Court. It is true that the amendment cannot be
claimed as a matter of right and under all circumstances. But it is
equally true that the Courts while deciding such prayers should not
adopt a hypertechnical approach. Liberal approach should be the
general rule particularly in cases where the other side can be
compensated with the costs. Technicalities of law should not be
permitted to hamper the Courts in the administration of justice
between the parties. Amendments are allowed in the pleadings to
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avoid uncalled-for multiplicity of litigation."
In para 4 of the same judgment this Court has quoted the following
passage from the judgment in A.K. Gupta and Sons Ltd. v. Damodar
Valley Corpn. : (AIR pp. 97-98, para 7)
"The general rule, no doubt, is that a party is not allowed by
amendment to set up a new case or a new cause of action particularly
when a suit on new case or cause of action is barred : Weldon v. Neal.
But it is also well recognized that where the amendment does not
constitute the addition of a new cause of action or raise a different
case, but amounts to no more than a different or additional approach to
the same facts, the amendment will be allowed even after the expiry of
the statutory period of limitation : See Charan Das v. Amir Khan and
L.J. Leach and Co. Ltd. v. Jardine Skinner and Co."
This Court in the same judgment further observed that the
principles applicable to the amendment of the plaint are equally
applicable to the amendment of the written statement and that the
Courts are more generous in allowing amendment of the written
statement as the question of prejudice is less likely to operate in that
event. It is further stated that the defendant has a right to take
alternative plea in defence which, however, is subject to an exception
that by the proposed amendment the other side should not be subjected
to serious injustice and that any admission made in favour of the
plaintiff conferring right on him is not withdrawn."
14. As already observed, cross-examination of the plaintiff witness has
not begun, therefore, no prejudice would be caused to the respondents,
if the amendment sought by the petitioner is allowed, otherwise the suit
filed by the petitioner may be dismissed as not maintainable in absence
of consequential relief."
9. In the present case also the evidence of plaintiffs has not started
and no examination-in-chief of any witness of the plaintiffs has been
recorded. Only the issues have been framed as of now. By way of the
proposed amendment the plaintiffs want to seek relief of declaration
that the order dated 23.06.2016 passed by the Tehsildar is null and void
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SARVATE
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and not binding upon them. The averment that the said order is illegal
has already been made by the plaintiffs. The amendment proposed in
this regard is in consonance with the already existing plea. No new fact
has been sought to be introduced and only an additional relief on the
basis of the already pleaded facts has been sought for.
10. The plaintiffs also proposed to plead that they are entitled for
grant of mesne profits @ Rs.2,00,000/- per year till delivery of
possession of the suit lands to them. They further sought to plead the
fact that the order dated 23.06.2016 passed by the Tehsildar is null and
void and not binding upon them. Thus by introducing these averments
the plaintiffs are not in any manner bringing in any new facts. They
wish to only plead their entitlement as regards award of mesne profits
and that the order dated 23.06.2016 passed by the Tehsildar is null and
void. The proposed amendment does not in any manner change the
nature of the suit or cause any working injustice to the defendants and
no prejudice would be caused to them if the proposed amendment is
allowed more so when they shall have the right to make consequential
amendment. For the delay in proposing the amendment defendant No.1
can very well be compensated with costs.
11. Thus in my opinion the trial Court ought to have allowed the
amendment application filed by he plaintiffs but has erred in not doing
so. Consequently the impugned order dated 03.09.2022 passed by the
trial Court in so far as the application under Order 6 Rule 17 of the CPC
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SARVATE
Signing time: 28-07-2023
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filed by the plaintiffs has been rejected is hereby set aside. The
amendment application dated 22.01.2022 filed by the plaintiffs stands
allowed subject to payment of cost of Rs.2,000/- by them to defendant
No.1 before the trial Court on the next date of hearing.
12. The petition is accordingly allowed and disposed off.
(PRANAY VERMA)
JUDGE
ns
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 28-07-2023
10:15:56
