Babulal Jain S/O Shri Lal Kishan ... vs Seetaram Rastogi (Dead) Thr. ...
2023 Latest Caselaw 3600 MP

                                                           1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                 AT GWALIOR
                                                    BEFORE
                                 HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                                ON THE 1 st OF MARCH, 2023
                                             MISC. PETITION No. 2519 of 2021

                           BETWEEN:-
                           BABULAL JAIN S/O SHRI LAL KISHAN, AGED 82 YEARS,
                           OCCUPATION : BUSINESS,
                           R/O VILLAGE MOHNA TEHSIL AND DISTRICT
                           GWALIOR (MADHYA PRADESH) THROUGH POWER OF
                           ATTORNEY HOLDER MAHENDRA JAIN S/O BABULAL
                           JAIN, AGED 56 YEARS, R/O TALAIYA MOHALLA NAL
                           WALI GALI LOHIA BAZAR LASHKAR GWALIOR,
                           DISTRICT GWALIOR (MADHYA PRADESH)

                                                                                      .....PETITIONER
                           (BY SHRI GAURAV MISHRA - ADVOCATE)

                           AND
                                 SEETARAM RASTOGI (DEAD) THROUGH LEGAL
                                 REPRESENTATIVES
                           1.    VISHAMBHAR RASTOGI S/O LATE SHRI RADHEY
                                 SHYAM RASTOGI, AGED 64 YEARS, R/O. H.NO. 50
                                 PREM NAGAR IN FRONT OF SAI BABA MANDIR
                                 KILA ROAD GWALIOR (MADHYA PRADESH)

                           2.     RASHMI @ LAXMI D/O LATE SHRI SEETA RAM
                                 RASTOGI W/O SURENDRA RASTOGI, AGED 50
                                 YE A R S , R/O LAXMI BAI COLONY, PADAV
                                 LASHKAR GWALIOR (MADHYA PRADESH)

                           3.    RAJEEV RASTOGI @ RAJU S/O SHRI LATE SHRI
                                 SEETARAM RASTOGI, AGED 51 YEARS, R/O
                                 LAXMI BAI COLONY, PADAV, LASHKAR GWALIOR
                                 (MADHYA PRADESH)

                                                                                   .....RESPONDENTS
                           (SHRI MANISH SHARMA - ADVOCATE FOR RESPONDENT NO.1)

                                 This petition coming on for admission this day, th e court passed the
                           following:
Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 02-03-2023
06:42:37 PM
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                                                                 ORDER

This petition under Article 227 of the Constitution of India has been filed against the order dated 30.07.2021 passed by Additional Civil Judge, Gwalior to the Court of the 1st Civil Judge, Senior Division, Gwalior in Regular Civil Suit No. 378-A/1991 by which the application filed by the petitioner under Order 6 Rules 17 CPC has been rejected.

It is submitted by the learned counsel for the petitioner that the respondents have filed a suit for declaration that Rao Sultan Singh, the then Jagirdar of the village had given the land in dispute to the plaintiff by an unregistered document. It is true that the present the suit is pending for the last

more than 50 years, but the defendant filed an application under Order 8 Rule 1 CPC seeking permission to file additional documents. The said application was allowed and the additional documents were taken on record.

By filing the additional documents, the petitioner wanted to plead that one more suit was filed by the respondent by claiming their ownership on the ground that Rao Sultan Singh, the then Jagirdar of the village had given the land in the said suit to the plaintiff therein and not only the suit was dismissed but the second appeal was also dismissed by the High Court.

After the documents were taken on record, the petitioner filed an application under Order 6 Rule 17 CPC, but the same has been rejected on the ground that the land which was a subject mattter of a different suit filed by the respondents was different and the parties were also different.

Challenging the order passed by the Courts below, it is submitted by the counsel for the petitioner that even in the present case, the claim of the respondents is that the they were given the land in duspute by Rao Sultan Singh, the then Jagirdar of the village. In the earlier instituted suit, it was held that Rao Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 02-03-2023 06:42:37 PM

Sultan Singh was not the Jagirdaar of the land. Whether the suit property was a part of the same unregistered document which was relied upon by the plaintiff in the separately instituted suit or whether the judgement pronounced in the said judgment will have any relevance to the facts of the case can only be decided after the recording of evidence. Since the plaintiff was claiming ownership on the basis of unregistered document purportedly executed by Rao Sultan Singh and it was held that Rao Sultan Singh was not the owner of the land of dispute, then whether the defendant was different or not will not be of any material importance.

Under these circumstances, it is submitted that the trial Court should have allowed the application filed under Order 6 Rule 17 CPC.

Per contra, the counsel for the respondents has supported the findings recorded by the trial Court.

The Supreme Court in the case of Life Insurance Corporation of India Vs. M/s. Sanjeev Builders Private Limited and another reported in 2022 SCC Online SC 1128 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 Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 02-03-2023 06:42:37 PM

( i ) if the amendment is required for effective a n d 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 th e opposite party ca n 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 Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 02-03-2023 06:42:37 PM

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).

Therefore, the only question for consideration is as to whether the proposed amendment is relevant for just decision of the case or not ? It is true that the suit is pending for the last 50 years, but the same cannot be the solitary ground to reject the application under Order 6 Rule 17 CPC. It is the case of the petitioner that the respondents-plaintiffs have already lost one suit in which he had claimed that Rao Sultan Singh was Jagirdar of the village and he had given the land to the respondents/plaintiffs. A similar defence has been taken in the present suit also. Whether the principle of res judicata would apply or not is a different aspect, but the judgment passed in the previously instituted suit on the basis of same claim will certainly have a relevance in the present case.

Under these circumstances, this Court is of the considered opinon that the trial Court should have allowed the application filed under Order 6 Rule 17 CPC.

Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 02-03-2023 06:42:37 PM

Accordingly, the same is allowed. The impugned order dated 30.07.2021 passed by Additional Civil Judge, Gwalior to the Court of the 1st Civil Judge, Senior Division, Gwalior in Regular Civil Suit No. 378-A/1991 is hereby set aside.

The amendment be carried out within a period so fixed by the trial Court. The respondents/plaintiffs shall be free to file a consequential amendment application.

With aforesaid observation, the petition is allowed.

(G.S. AHLUWALIA) JUDGE Avi

Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 02-03-2023 06:42:37 PM