Madhya Pradesh High Court
Bhagwan Singh vs The State Of Madhya Pradesh on 2 May, 2023
Author: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
MISC. PETITION NO. 5717 of 2019
BETWEEN:-
BHAGWAN SINGH S/O SHRI RATIRAM, AGED
ABOUT 63 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE RAMNER TEHSIL
BHANDER DISTRICT DATIA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI HARISH KUMAR DIXIT - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR DISTRICT DATIA (MADHYA
PRADESH)
2. GENERAL MANAGER, PROJECT
IMPLEMENTATION UNIT DATIA M.P. RURAL
ROAD DEVELOPMENT AUTHORITY, DATIA
(MADHYA PRADESH)
3. R.K. TRIPATHI, CONTRACTOR MZ PHASE II
KUTUMB APARTMENT BALWANT NAGAR,
GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI P.S. RAGHUVANSHI - GOVT. ADVOCATE, SHRI
NAKUL KHEDKAR - ADVOCATE FOR RESPONDENT NO.2
AND SHRI PRASHANT SHRIVASTAVA - ADVOCATE FOR
RESPONDENT NO.3)
------------------------------------------------------------------------------------------
This petition coming on for admission this day, the court passed
the following:
2
ORDER
1. The present petition is preferred under Article 227 of the
Constitution of India being crestfallen by the order dated 18-10-
2019 passed by the Civil Judge Class -I, Bhander District Datia
whereby the application of petitioner as plaintiff under Order VI
Rule 17 of CPC has been rejected.
2. It is the submission of learned counsel for the petitioner that the
suit for permanent injunction was filed against the
respondent/defendant on the ground that respondent No.2 intends
to construct a road over the land of ownership of plaintiff and
unless the acquisition is in accordance with law or suitable
compensation is given, no construction can be carried out.
3. It appears from the pleadings that during pendency of the suit,
road was constructed over the land of ownership of plaintiff and
therefore, an application under Order VI Rule 17 of CPC was
preferred to incorporate the pleadings in respect of factum of
construction of road carried out over the land belongs to the
plaintiff. Said amendment was in respect of event subsequent to
filing of plaint and it does not alter the nature of controversy,
therefore, rejection of application was arbitrary and illegal. He
further refers the judgment of Apex Court in the case of Salem
Advocate Bar Assn. Vs. Union of India, (2005) 6 SCC 344 to
bring home the fact that there is no requirement of filing of
application with affidavit, since after amendment of pleadings
fresh affidavit has to be filed in support of the pleadings, so
incorporated.
4. Learned counsel for the respondents vehemently opposed the
submission and submitted that since due diligence has not been
shown by the petitioner and it changes the nature of the suit,
therefore, trial Court rightly rejected the application and thus
prayed for dismissal of the petition.
5. Heard.
6. This is a case where petitioner as plaintiff is seeking amendment
in the pleadings in the plaint filed seeking permanent injunction to
the extent where defendant be injuncted not to construct the road
over the land of ownership of the plaintiff without acquiring it or
suitably compensating for the same. Since the application for
temporary injunction under Order XXXIX Rule 1 and 2 of CPC
was rejected by the trial Court, therefore, it appears that defendant
No.2 laid road over the land allegedly of ownership of plaintiff,
therefore, new facts situation arises to incorporate those facts
which are subsequent in nature. Same does not alter the nature of
litigation. Therefore, application deserves to be allowed so that
plaintiff can lead appropriate evidence at appropriate stage. From
the pleadings and contents of application it appears that trial
Court erred in rejecting the application for amendment.
7. The judgment of Apex Court in the case of Salem Advocate Bar
Assn. (supra) needs reiteration:
"4. Prior to insertion of the aforesaid provisions,
there was no requirement of filing affidavit with the
pleadings. These provisions now require the plaint to
be accompanied by an affidavit as provided in Section
26(2) and the person verifying the pleadings to
furnish an affidavit in support of the pleading [Order
6 Rule 15(4)]. It was sought to be contended that the
requirement of filing an affidavit is illegal and
unnecessary in view of the existing requirement of
verification of the pleadings. We are unable to agree.
The affidavit required to be filed under amended
Section 26(2) and Order 6 Rule 15(4) of the Code has
the effect of fixing additional responsibility on the
deponent as to the truth of the facts stated in the
pleadings. It is, however, made clear that such an
affidavit would not be evidence for the purpose of the
trial. Further, on amendment of the pleadings, a fresh
affidavit shall have to be filed in consonance thereof."
(E.S.)
8. Therefore, it appears that if amendment application is allowed
then to support the pleadings so amended affidavit is required.
Besides that plea of ad voleram court fee is matter of evidence
which can be addressed at appropriate stage. So far as non
mentioning of time period in which road was constructed, it is not
of material bearing so far as the application under Order VI Rule
17 of CPC is concerned. Once the event which is to be
incorporated is subsequent to the filing of civil suit, then the said
aspect cannot be the ground for rejection of such application.
Ultimately, plaintiff shall have to prove his case on its own merit.
9. Resultantly, the impugned order passed by the trial Court stands
set aside and the amendment application is hereby allowed.
Necessary amendments be carried out by the plaintiff in
accordance with law by the next date of hearing. Defendants shall
be at liberty to cause consequential amendments in the pleadings
accordingly.
10. Petition stands allowed and disposed of.
(ANAND PATHAK)
Anil* JUDGE
ANIL KUMAR
CHAURASIYA
2023.05.03
10:50:56
+05'30'
