Madhya Pradesh High Court
Jagdishchandra Ratnawat vs Radhabai on 26 June, 2023
Author: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 26th OF JUNE, 2023
MISC. PETITION No. 4104 of 2021
BETWEEN:-
JAGDISHCHANDRA RATNAWAT, AGED
ABOUT 68 YEARS, OCCUPATION:
ADVOCATE ROAD NO. 3, KALAKHET,
GAUTAM NAGAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI V.K. JAIN, SENIOR ADVOCATE WITH SHRI VAIBHAV JAIN,
ADVOCATE)
AND
1. RADHABAI D/O SHRI CHHAGANLAL JI
NAI W/O SHRI RAMESHCHANDRAJI
NAI, AGED ABOUT 49 YEARS,
OCCUPATION: HOUSEHOLD VILLAGE
RANAYARA, POST-RANAYARA VIA
VODA, TEHSIL MALHARGARH
(MADHYA PRADESH)
2. RAJKUMAR KOTWANI S/O
TIRATHDASJI KOTWANI, AGED ABOUT
53 YEARS, OCCUPATION: BUSINESS 10,
KOWANI NIWAS, PARAKH COLONY,
MANDSAUR (MADHYA PRADESH)
3. RAMKUMAR KOTWANI S/O TIRATHDAS
KOTWANI, AGED ABOUT 50 YEARS,
OCCUPATION: BUSINESS 10, KOWANI
NIWAS, PARAKH COLONY, MANDSAUR
(MADHYA PRADESH)
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 29-06-2023
15:10:36
2
4. RAMESHWAR S/O CHHAGANLAL NOT
MENTION (MADHYA PRADESH)
5. PUSHPABAI W/O LATE RAMESHWAR JI
NAI, AGED ABOUT 54 YEARS,
OCCUPATION: LABOUR NEAR THE
HOME OF SHRI JAGDISH RATNAWAT
ADVOCATE ROAD NO. 3 GAUTAM
NAGAR MANDSAUR (MADHYA
PRADESH)
6. ASHOK @ NAUR S/O RAMESHWAR,
AGED ABOUT 34 YEARS, OCCUPATION:
LABOUR NEAR THE HOME OF SHRI
JAGDISH RATNAWAT ADVOCATE ROAD
NO. 3 GAUTAM NAGAR MANDSAUR
(MADHYA PRADESH)
7. MANOJ S/O RAMESHWAR JI, AGED
ABOUT 37 YEARS, OCCUPATION:
LABOUR NEAR THE HOME OF SHRI
JAGDISH RATNAWAT ADVOCATE ROAD
NO. 3 GAUTAM NAGAR MANDSAUR
(MADHYA PRADESH)
8. BHUPENDRA S/O SHRI GANPATLAL,
AGED ABOUT 47 YEARS, OCCUPATION:
BUSINESS PARASMANI JEWELLERS,
NEAR HOTEL NEELAM, GAUTAM
NAGAR (MADHYA PRADESH)
9. MANOJ S/O SHRI BANSHILAL JI, AGED
ABOUT 45 YEARS, OCCUPATION:
SAHUKARI NEAR JATO TEMPLE,
NAYAPARA ROAD, MANDSAUR
(MADHYA PRADESH)
10. NAGAR PALIKA PARISHAD,
MANDSAUR THROUGH CHIEF
EXECUTIVE OFFICER NAGAR PALIKA
PARISHAD, MANDSAUR (MADHYA
PRADESH)
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 29-06-2023
15:10:36
3
11. JASSUBHAI S/O LATE HEMANTDAS JI
KHEMANI, AGED ABOUT 60 YEARS,
OCCUPATION: BUSINESS ROAD NO. 1,
GAUTAM NAGAR, MANDSAUR
(MADHYA PRADESH)
12. RAMSUKH S/O BHAYYALAL JI SONI,
AGED ABOUT 72 YEARS, 309, ASHOK
MARG, MANDSAUR (MADHYA
PRADESH)
13. ANIL S/O BASANTILAL JI JAIN, AGED
ABOUT 56 YEARS, 6, JANKUPURA,
MANDSAUR (MADHYA PRADESH)
14. SMT. MEENU W/O BHUPENDRA, AGED
ABOUT 45 YEARS, 2, GAUTAM NAGAR,
MANDSAUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI RAMKUMAR KOTWANI, RESPONDENT No.3 PRESENT IN
PERSON)
...............................................................................................................
This petition coming on for admission this day, the court
passed the following:
ORDER
Heard finally, with the consent of the parties.
2] This petition has been filed by the petitioner/defendant No.12
under Article 227 of the Constitution of India against the order
dated 01.11.2021, passed in Civil Suit No.78-A/2016 (R.C.S.A.
24000321/2018) by the III Civil Judge, Senior Division, District
Mandsaur, whereby the petitioner's application filed under Order 6
Rule 17 of CPC has been rejected.
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 29-06-2023
15:10:36
3] In brief, the facts of the case are that on 30.01.2008, the
respondent No.1 (plaintiff No.1) executed an agreement to sale in
favour of the petitioner in respect of the property situated at Gautam
Nagar, Mandsaur. The agreement was to be performed whenever the
plaintiff was in a position to handover the possession of the
property. On 02.02.2008, the respondent No.1 filed the present suit
for declaration and permanent injunction against respondent Nos. 4
to 10 and on 29.04.2013, respondent No.4 executed a sale deed of
part of the said plot in the favour of the respondent Nos. 8, 12, 13
and 14. Thereafter, in the year 2014, the respondent No.1 also
executed two sale deeds in favour of respondent Nos.2 and 3 in
respect of the part of the disputed land and in the year 2015, the
respondent Nos.8, 12, 13 and 14 executed a sale deed in favour of
the petitioner of a portion of the House No.58, Gautam Nagar,
Mandsaur. On 24.03.2018, respondent Nos.2 and 3 were impleaded
as plaintiff Nos.2 and 3 and the petitioner was also impleaded as
defendant No.12 in the present suit. On 15.04.2019, the petitioner
also filed his written statement and counter-claim. In the year 2019,
respondent Nos.1 to 3 filed an application for amendment
challenging the four sale deeds executed in favour of respondent
Nos.8, 12, 13 and 14 and also sale deed executed in favour of the
petitioner and has also claimed relief of possession. On 25.09.2019,
the aforesaid application was allowed, however, the plaintiff did not
carry out the amendments, but on an application filed under Order 6
Rule 18 of CPC by the respondent Nos.1 to 3, permitting them to
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 29-06-2023
15:10:36
carry out the amendment after delay, the same was allowed by the
Trial Court on 05.07.2021, which led the petitioner to file an
application under Order 6 Rule 17 of CPC on 31.07.2021 for
consequential amendment in the written statement and also a
counter-claim, but the aforesaid application has been dismissed by
the Trial Court vide its order dated 01.11.2021 holding that the
amendment sought cannot be allowed as the same is barred by the
proviso to Order 6 Rule 17 of CPC, which provides 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", and the Court has also held that the
defendant No.12 has not clarified as to which part of the
amendment application is consequential amendment and which is
the counter-claim. It is also observed that the agreement was
entered into by the defendant No.12 (the petitioner herein) and the
respondent No.1 around 13 years ago and there is no reason
assigned as to why the relief sought in the proposed counter-claim
was not sought by him at an earlier occasion, and in the written
statement filed by the defendant in the year 2019 also, no such relief
has been sought. Thus, by relying upon the various judgments of the
Supreme Court, the trial Court has rejected the application for
amendment.
4] Shri V.K. Jain, learned senior counsel appearing for the
petitioner has submitted that learned Judge of the Trial Court has
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 29-06-2023
15:10:36
erred in rejecting the aforesaid application despite the fact that it
was in the form of consequential amendment only, and also that the
counter-claim has been filed only after the amendment was made by
the plaintiff after delay when their application under Order 6 Rule
18 of CPC was allowed on 05.07.2021. It is also submitted that the
cause of action to file the counter claim arose to the petitioner only
when the amendment was made by the plaintiff. Thus, it is
submitted that the impugned order be set aside and the application
filed by the petitioner under Order 6 Rule 17 of CPC to amend the
written statement as also the counter-claim contained therein, be
allowed as even the evidence has not started in the present case.
5] The application is opposed by the respondent No.3, who is
present in person and it is submitted that no interference is called
for in the impugned order.
6] Heard counsel for the parties and perused the record.
7] From the record it is apparent that the petitioner entered into
an agreement with the respondent no.1 to sell the land in the year
2008, and admittedly, despite paying a sum of Rs.4.5 lakhs he never
filed any suit for specific performance of the contract nor took the
said plea in his counter claim filed in the year 2019. In his
application under Order 6 Rule 17 of CPC, the petitioner has sought
the amendment not only in the written statement, but in the counter-
claim simultaneously and thus, it is difficult to decipher the
difference between the two, and admittedly, the petitioner has also
sought the specific performance of the agreement dated 30.01.2008
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 29-06-2023
15:10:36
from the respondent no.1in the proposed amendment in the counter
claim.
8] In the considered opinion of this Court, such an application as
has been filed by the petitioner cannot be allowed especially the
counter claim in which the petitioner is seeking the specific
performance of the contract entered into between him and
respondent No.1 in the year 2008, especially when he had already
filed his written statement and counter claim on 15.04.2019. In such
circumstances, even if the evidence of the plaintiff has not started,
this Court does not find any illegality or jurisdictional error
committed by the learned Judge of the Trial Court while passing the
impugned order, however, as the plaintiffs have carried out their
amendments in the plaint after delay, vide order dated 05.07.2021
passed by the Trial Court, the petitioner is at liberty to file a fresh
application for the consequential amendment only.
9] With the aforesaid, the petition stands disposed of.
(SUBODH ABHYANKAR)
JUDGE
Bahar
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 29-06-2023
15:10:36
