Smt. Seema vs Smt. Sarla Bai
2023 Latest Caselaw 9366 MP

                                                        1
                           IN    THE     HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                   BEFORE
                                   HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                              ON THE 22 nd OF JUNE, 2023
                                           MISC. PETITION No. 1249 of 2018

                          BETWEEN:-
                          1.    SMT. SEEMA W/O SHRI SHARAD TIWARI, AGED
                                ABOUT 35 YEARS, R/O. PATEL GARHI VILL.
                                RAIPUR TEH. AND DISTT. HOSHANGABAD
                                (MADHYA PRADESH)

                          2.    SMT NEETA W/O MAHESH SHUKLA, AGED ABOUT
                                38  YEARS, PAT E L G A R H I VI LLAG E RAIPUR
                                TEHSIL (MADHYA PRADESH)

                          3.    SMT JYOTI W/O SURESH MISHRA, AGED ABOUT
                                45  YEARS, PAT E L G A R H I VI LLAG E RAIPUR
                                TEHSIL (MADHYA PRADESH)

                          4.    SMT CHITRA W/O RAKESH TIWARI, AGED ABOUT
                                40  YEARS, PAT E L G A R H I VI LLAG E RAIPUR
                                TEHSIL (MADHYA PRADESH)

                          5.    SURESH S/O SHIV PRASAD MISHRA, AGED ABOUT
                                50  YEARS, PAT E L G A R H I VI LLAG E RAIPUR
                                TEHSIL (MADHYA PRADESH)

                                                                                .....PETITIONER
                          (BY SHRI K.K. PANDEY-ADVOCATE)

                          AND
                          1.    SMT. SARLA BAI W/O SHRI RADHE SHYAM
                                AGNIHOTRI, AGED ABOUT 65 YEARS, R/O. VILL.
                                KAPURDHA TEH. CHOURAI (MADHYA PRADESH)

                          2.    SMT GEETA W/O RAMGOPAL YADAV SARASWATI
                                NAGAR RASULIYA TEHSIL (MADHYA PRADESH)

                          3.    SMT ANITA W/O SUDHIR YAD AV SARASWATI
                                NAGAR RASULIYA TEHSIL (MADHYA PRADESH)

                          4.    SMT MAMTA W/O RAGHUVIR SINGH SARASWATI
Signature Not Verified
                                NAGAR RASULIYA TEHSIL (MADHYA PRADESH)
Signed by: ASTHA SEN
Signing time: 6/27/2023
6:56:25 PM
                                                               2

                          5.    SMT ANJALI W/O ARUN YA D AV SARASWATI
                                NAGAR RASULIYA TEHSIL (MADHYA PRADESH)

                          6.    SMT NISHA W/O ARVIND YADAV SARASWATI
                                NAGAR RASULIYA TEHSIL (MADHYA PRADESH)

                          7.    SMT MINAKSHI W/O RADHE S H YAM SHUKLA
                                ARVIND MARG PACHM AR I TEHS I L PIPARIYA
                                (MADHYA PRADESH)

                          8.    HANUMAN MANDIR REGI. TRUST THROUGH
                                SARVRAHAKAR      TRUSTEE      MAHANT
                                LAKSHMIDASHI       SHASTRI      GURU
                                SHATRIGHANDASJI SHASTRI SETHANI GHAT
                                HOSHANGABAD (MADHYA PRADESH)

                          9.    KAPIL FAUJDAR S/O DILJINEWAR DAS, AGED
                                ABOUT 58 YEARS, WARD     NO 20 BALAGANJ
                                (MADHYA PRADESH)

                          10.   RAKESH FAUJDAR S/O DILJINEWAR DAS, AGED
                                ABOUT 65 YEARS, WARD     NO 20 BALAGANJ
                                (MADHYA PRADESH)

                          11.   PRABHAT GILLA S/O BIRENDRA GITLA, AGED
                                ABOUT 48 YEARS, NEAR INDIAN GAS HARNE
                                GALI (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                          (BY MS. TULIKA GULATEE-ADVOCATE)

                                This petition coming on for admission this day, th e court passed the
                          following:
                                                               ORDER

The petitioners in the present petition have assailed the order dated 20/07/2017 (Annexure P/9) in Civil Suit No.17A/2012 pending before the Civil Judge Class-IV, Hoshangabad, (M.P.).

2. Learned counsel for the petitioners contends that respondent No.1/plaintiff herein has filed a suit for declaration. During pendency of the suit, the respondents/plaintiffs alienated the disputed property, therefore, the present

Signature Not Verified Signed by: ASTHA SEN Signing time: 6/27/2023 6:56:25 PM

petitioners filed an application under Order 1 Rule 10 of CPC seeking impleadment of subsequent purchasers and also an application under Order 6 Rule 17 of CPC for bringing the fact regarding alienation of the property in question during pendency of the suit. The said applications have been turned down by the impugned order.

3. It is contended by the counsel that the trial Court was required to appreciate in the present case that during pendency of the suit, the property in question was alienated, therefore, the subsequent events were sought to be brought on record by way of amendment in the pleadings. It is further contended by the counsel that the subsequent purchasers were also required to be impleaded in the suit having acquired interest in the property, therefore, submits that the Court fell in error while rejecting both the applications.

4. To support his contention, learned counsel for the petitioners placed reliance in the judgment of Apex Court in the case of N. C. Bansal Vs. Uttar Pradesh Financial Corporation and Anr. reported in AIR 2018 SC 685 and also decision of this Court in SA No.650/2015 (Smt Usha Vs. Sarubhai and Ors.).

5. Per contra, learned counsel for the respondents submits that the proposed parties were neither proper nor necessary parties and accordingly, the trial Court rightly declined to entertain the application filed under Order 1 Rule

10 of CPC. It is also contended by the counsel that the subsequent purchasers in view of Section 52 of Transfer of Property Act can not seek impleadment in the proceedings. Learned counsel has placed reliance in the decision of Apex Court in the case of Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and Anr. reported in 2004 (1) SCC 191.

6. Heard rival submissions of the parties and perused the record. Signature Not Verified Signed by: ASTHA SEN Signing time: 6/27/2023 6:56:25 PM

7. In the present case, during pendency of the suit, the plaintiffs/respondents have alienated the property in question and in view of the said alienation, an application under Order 6 Rule 17 of CPC seeking amendment in the pleadings as well as an application under Order 1 Rule 10 of CPC seeking impleadment of subsequent purchasers were filed by the present petitioners. The Court below while dealing with the application filed under Order 1 Rule 10 of CPC referred to the decision of AIR 2007 NOC 1218 AP and concluded that alienation during pendency of the litigation is hit by Section 52 of Transfer of Property Act.

8. Therefore, so far as the order on an application filed under Order 1 Rule 10 of CPC is concerned, this Court does not find any infirmity with the order impugned. However, so far as the application filed under Order 6 Rule 17 of CPC is concerned, the Court below was required to take into consideration the fact that the proposed amendments were pertaining to the subsequent events which had taken place during pendency of the litigation. All the amendments are required to be allowed unless they have effect of changing the nature of litigation or cause prejudice to the opposite party.

9. The Apex Court after dealing with the earlier judgments in Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Another [2022 LiveLaw (SC) 729] summed the principles in para 70, which is reproduced hereunder :

"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.

Signature Not Verified Signed by: ASTHA SEN Signing time: 6/27/2023 6:56:25 PM

(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.

(v i) 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 Signature Not Verified Signed by: ASTHA SEN Signing time: 6/27/2023 6:56:25 PM

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)" (Emphasis supplied)"

10. In view of the aforesaid, this petition stands partly allowed. The judgements so relied upon by the counsel for the petitioners are distinguishable

on facts.

11. Accordingly, the impugned order so far as it relates to rejection of an application filed under Order 6 Rule 17 of CPC is concerned, the same stands set aside. The application under Order 6 Rule 17 of CPC is allowed.

12. Certified copy as per rules.

(MANINDER S. BHATTI) JUDGE Astha

Signature Not Verified Signed by: ASTHA SEN Signing time: 6/27/2023 6:56:25 PM