Maniram vs Sheikh Aslam
2023 Latest Caselaw 9171 MP

                                  1                    MP No.1512/2018


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 20th OF JUNE, 2023
              MISC. PETITION No. 1512 of 2018
BETWEEN:-

MANIRAM S/O DHONDIA JI DAHARE, AGED ABOUT
489  YEARS,  OCCUPATION:     CASTE   PAWAR
OCCUPATION BUSINESS R/O SHASTRI WARD, SADAR
BAZAR, BETUL, TEHSIL AND DISTRICT BETUL
(MADHYA PRADESH)



                                                        .....PETITIONER
(BY SHRI RAVI JAISWAL - SENIOR ADVOCATE WITH SHRI K.K. GAUTAM -
ADVOCATE)

AND

1.    SHEIKH ASLAM S/O AMEEN, AGED ABOUT 43
      YEARS, CASTE MUSALMAN R/O TILAK WARD
      KOTHI BAZAR, BETUL TEHSIL AND DISTRICT
      BETUL (MADHYA PRADESH)



2.    STATE OF MADHYA PRADESH THROUGH
      COLLECTOR   BETUL, DISTRICT BETUL
      (MADHYA PRADESH)



                                                      .....RESPONDENTS
(SHRI ANKIT NEMA - ADVOCATE FOR RESPONDENT NO.1 )
      This petition coming on for admission this day, the court passed the

following:

                                ORDER

This petition under Article 227 of the Constitution of India has

been filed against the order dated 12.02.2018 passed by District Judge, Betul in RCA No.11-A/2017 by which an application for amendment in the plaint has been rejected at appellate stage.

2. It is submitted by the counsel for the petitioner that the petitioner had filed a suit for specific performance of contract. The suit was dismissed by holding that the petitioner has failed to prove the execution of agreement to sale. It is submitted that one of the grounds for non- suiting the petitioner is that the signatures of the respondent on the agreement to sale are different. Accordingly, the petitioner moved an application under Order 6 Rule 17 CPC in appeal on the ground that the respondent is in habit of putting different signatures on different documents and thus, he wanted to place the additional evidence in the form of certified copies of other sale deeds apart from proposing amendment in plaint. However, by the impugned order, the said application has been rejected.

3. Challenging the order passed by the Appellate Court, it is submitted by the counsel for the petitioner that it is well established principle of law that amendment application can be allowed even at appellate stage. It is submitted that the delay cannot be a ground to reject the application provided the same is necessary for just decision of the case. Once the petitioner has been non-suited on the ground that he has failed to prove the execution of agreement to sale, then the proposed amendment was necessary for just decision of the case. Accordingly, it is submitted that the application which was filed by the petitioner under Order 6 Rule 17 of CPC before the appellate Court may be allowed.

4. Per contra, it is submitted by the counsel for respondent No.1 that the suit of the petitioner was dismissed on multiple grounds. There is no specific finding to the effect that the signatures of the defendant do not

match with his admitted signatures. The application has been filed with an intention to delay the hearing of the appeal and it is not necessary for just decision of the case.

5. Heard the learned counsel for the parties.

6. The Supreme Court in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited decided on 01.09.2022 in Civil Appeal No.5909/2022 has held as under:

"70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to

withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer.

Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) 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. If the facts of the present case are considered, then it is clear that the petitioner was non-suited on multiple grounds after due appreciation of evidence. Whether that appreciation was correct or not is a subject matter of appeal and does not require any consideration at this stage.

However, the counsel for the petitioner could not point out any finding with regard to difference in signatures at different places.

8. Be that whatever it may be.

9. The application under Order 6 Rule 17 CPC was filed seeking the following amendment:

"iSjk Øekad 3(v) ;g fd izfroknh Hkwfe@IykaV vkfn Ø; foØ; djus dk O;olk; djrk gSA izfroknh Hkq[k.M ds foØ; ij iath;u djus ds nkSjku vyx vyx foØ; i=ksa es fHkUu fHkUu izdkj ds gLrk{kj djrk gSA izfroknh dHkh Hkh ,d ls gLrk{kj ugh djrk gSA izfroknh ds fHkUu&fHkUu gLrk{kjksa dks izekf.kr djus ds fy;s izfroknh }kjk fu"ikfnr vU; Hkwfe ds foØ; i=ksa dh izekf.kr izfrfyfi;kW oknh }kjk izLrqr dh xbZ gS tks okn ds fujkdj.k ds fy;s egRoiw.kZ gSA"

10. It is not the case of the petitioner that the sale deeds which were sought to be filed alongwith the amendment application were executed subsequent to the judgment pronounced by the trial Court. Thus, the petitioner was necessarily proposing an amendment in respect of preexisting circumstances. No litigant can be allowed to amend the pleadings after taking clue from the findings given by the Court. The amendment can be allowed only if the petitioner successfully pleads and proves that in spite of due diligence he was not aware of the aforesaid fact or it is based on subsequent events etc. There is no such whisper about the fact as to why the said application was not filed before the trial Court.

11. Furthermore, this Court is of the considered opinion that the proposed amendment was not necessary for just decision of the appeal. Accordingly, no jurisdictional error was committed by the Appellate Court by rejecting the application.

12. Ex-consequenti, the order dated 12.02.2018 passed by District Judge, Betul in RCA No.11-A/2017 is hereby affirmed.

13. The petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE vc

Digitally signed by VARSHA CHOURASIYA Date: 2023.06.23 17:57:38 +05'30'