Amar Bhushan Awasthi vs Smt.Sunita Jain
2023 Latest Caselaw 8674 MP

                                                              1
                                   IN    THE     HIGH COURT OF MADHYA PRADESH
                                                      AT JABALPUR
                                                           BEFORE
                                             HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                     ON THE 14 th OF JUNE, 2023
                                                   MISC. APPEAL No. 4564 of 2007

                                  BETWEEN:-
                                  1.    AMAR BHUSHAN AWASTHI S/O LATE PREETAM
                                        LAL AWASTHI, AGED ABOUT 38 YEARS, 1068/1,
                                        NEAR ABOUT KESHARWANI COLLEGE, GOL
                                        BAZAR, JABALPUR (MADHYA PRADESH)

                                  2.    INDIRA BHUSHAN AWASTHI S/O LATE PREETAM
                                        LAL AWASTHI, AGED ABOUT 62 YEARS, 1068/1,
                                        NEAR ABOUT KESHARWANI COLLEGE, GOL
                                        BAZAR, JABALPUR (MADHYA PRADESH)

                                  3.    SAHASHI BHUSHAN AWASTI S/O LATE PREETAM
                                        LAL AWASTHI, AGED ABOUT 56 YEARS, 1068/1,
                                        NEAR ABOUT KESHARWANI COLLEGE, GOL
                                        BAZAR, JABALPUR (MADHYA PRADESH)

                                  4.    SMT. CHANDRA BHUASH AWASTHICHANDRA
                                        BHUASHAN AWASTHI, AGED ABOUT 50 YEARS,
                                        1068/1, NEAR ABOUT KESHARWANI COLLEGE,
                                        GOL BAZAR, JABALPUR (MADHYA PRADESH)

                                  5.    ANKUR     AWASTHI  S/O  LATE   CHANDRA
                                        BHUASHAN AWSTHI, AGED ABOUT 22 YEARS,
                                        1068/1, NEAR ABOUT KESHARWANI COLLEGE,
                                        GOL BAZAR, JABALPUR (MADHYA PRADESH)

                                  6.    BHARAT BHUSHAN AWASTHI S/O LATE PREETAM
                                        LAL AWASTHI, AGED ABOUT 42 YEARS, 1068/1,
                                        NEAR ABOUT KESHARWANI COLLEGE, GOL
                                        BAZAR, JABALPUR (MADHYA PRADESH)

                                  7.    SMT. RAMESHWARI AWASTHILATE PREETAM
                                        LAL AWASTHI, AGED ABOUT 82 YEARS, 1067,
                                        GOEL BAZAR, JABALPUR (MADHYA PRADESH)

Signature Not Verified
  SAN
                                                                                    .....APPELLANTS
                                  (NONE FOR THE APPELLANTS)
Digitally signed by TULSA SINGH
Date: 2023.06.16 19:45:19 IST

                                  AND
                                                                 2
                                  SMT.SUNITA JAIN W/O P.K.JAIN, AGED ABOUT 47
                                  Y E A R S , H.NO.1068, OCCUPATION SERVICE, R/O
                                  H.NO.1068, NEAR ABOUT KESHARWANI COLLEGE,
                                  GOEL BAZAR, JABALPUR (MADHYA PRADESH)

                                                                                                  .....RESPONDENT
                                  (NONE FOR THE RESPONDENT)

                                        Th is appeal coming on for hearing this day, t h e court passed the
                                  following:
                                                                       ORDER

This Miscellaneous appeal is filed under Order 43 Rule 1 (U) r/w Section 151 of CPC being aggrieved of judgment and decree dated 28/09/2007 passed by the learned 2nd Additional District Judge, Jabalpur in F.A. No. 57A/06

setting aside the judgment and decree passed by the learned VI Civil Judge Class-II, Jabalpur in RCS No. 19A/04 and then allowing an application under Order 6 Rule 17 and another application under Order 41 Rule 27 CPC and then remanding the matter to the trial court to decide the suit afresh on its own merits.

2. Contention of appellants as borne out from the memo of appeal is that learned lower appellate Court in a suit for permanent injunction and restraining/stopping illegal construction over disputed land against the appellants overlooked the fact that plaintiff herself never came into the witness box and only her husband was examined as plaintiff's witness. She had filed photocopy of the sale deed along with plaint. Thus, she was having knowledge of the fact that her case is based on sale deed which was never sought to be exhibited before the trial Court. During trial she never disclosed that she was not having original sale deed with her. On these lacunas, suit was dismissed and they Signature Not Verified SAN

could not have been filled up by filing application under Order 41 Rule 27 and Digitally signed by TULSA SINGH Date: 2023.06.16 19:45:19 IST

another application under Order 6 Rule 17 of CPC.

3. It is also submitted that there was no justification for filing amendment application at the appellate stage after belated period of about six years.

4. On perusal of the impugned order, it is evident that learned lower appellate Court has considered all these aspects. It has noted a fact that application under Order 41 Rule 27 of CPC deserves to be allowed because certain documents were not accepted on technical ground though they were the best piece of evidence to point out as to whether plaintiff was owner of the suit land or not. Similarly, it allowed application under Order 6 Rule 17 of CPC in light of the fact that when application under Order 41 Rule 27 of CPC is allowed, then consequential amendment is necessary and must. When these aspects are taken into consideration, then amendment in the pleadings at the appellate stage for just or proper reason is not prohibited. When photocopy of the document was already available on record and the case of the plaintiff that at the relevant time, she was not having original copy of the sale deed and that was sought to be produced at the appellate stage, then impugned order accepting those documents and remanding the matter to the trial Court for fresh adjudication cannot be faulted with. There is no illegality in the impugned order calling for interference.

5. Accordingly, this miscellaneous appeal fails and is hereby dismissed.

(VIVEK AGARWAL) JUDGE ts.

Signature Not Verified SAN

Digitally signed by TULSA SINGH Date: 2023.06.16 19:45:19 IST