Madhya Pradesh High Court
Dhaniram vs Omprakash on 13 October, 2023
Author: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 13 th OF OCTOBER, 2023
MISCELLANEOUS PETITION No. 3865 of 2019
BETWEEN:-
1. DHANIRAM S/O LATE SHRI NANDRAM, AGED
ABOUT 64 YEARS, RESIDENT OF SINGHAL BASTI
MORENA, TEHSIL AND DISTRICT MORENA
(MADHYA PRADESH)
2. CHHATRAPAL S/O LATE NANDRAM, RESIDENT
OF SINGHAL BASTI MORENA, TEHSIL AND
DISTRICT MORENA (MADHYA PRADESH)
3. RAMPRASAD S/O LATE NANDRAM RESIDENT OF
SINGHAL BASTI MORENA, TEHSIL AND DISTRICT
MORENA (MADHYA PRADESH)
4. BHARAT S/O LATE NANDRAM RESIDENT OF
SINGHAL BASTI MORENA, TEHSIL AND DISTRICT
MORENA (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI P.C. CHANDIL - ADVOCATE)
AND
1. OMPRAKASH S/O SHRI GANPATI, AGED ABOUT 38
YEARS, RESIDENT OF SINGHAL BASTI MORENA
(MADHYA PRADESH)
2. BRAJESH S/O GANPATI, AGED ABOUT 28 YEARS
RESIDENT OF SINGHAL BASTI MORENA
(MADHYA PRADESH),
3. PREM KUMAR S/O MOTIRAM, RESIDENT OF
SINGHAL BASTI MORENA (MADHYA PRADESH)
4. REGISTRAR, COLLECTOR PARISAR, MORENA
(MADHYA PRADESH)
5. THE STATE OF MADHYA PRADESH THROUGH
Signature Not Verified
Signed by: PAWAN KUMAR
Signing time: 16-10-2023
12:52:16 PM
2
COLLECTOR MORENA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI A.K. NIRANKARI - ADVOCATE FOR RESPONDENTS NO.1 TO 3)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition, under Article 227 of the Constitution of India, has
been filed by the petitioners against order dated 18.07.2019 passed by Second
Additional District Judge, Morena in Civil Appeal No.39-A of 2018 whereby an
application under Order 6 Rule 17 read with Section 151 of the Code of Civil
Procedure preferred by the petitioner/appellant was rejected on the ground that
no plausible reason has been assigned for carrying out the amendment in the
plaint.
2. The said order has been assailed on the ground that it is de-hors the
mandate as envisaged by this Court in the various judgments wherein it has been
held that the analogy while considering the application under Order 41 Rule 27
of CPC would be applicable to the application under 6 Rule 17 of CPC filed at
the appellate stage and the same should be decided at the time of final hearing
of the appeal.
3. Learned counsel for the petitioner, while placing reliance in the matters
of Khemchand vs. Government of M.P. & Others reported in (1970) JLJ
482; Harbilas & Others vs. Kokabai & Another reported in 1982 JLJ 67
and Ramesh Singh & Others vs. Vaijanti Bai & Others reported in 2003
(4) MLPJ 162, submitted that the analogy which is applicable while deciding
the application under Order 41 Rule 27 of the CPC applies equally to the
disposal of an application for amendment of pleadings made at the appellate
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Signed by: PAWAN KUMAR
Signing time: 16-10-2023
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stage. The question whether a party should or should not be allowed to amend
its pleadings at the appellate stage cannot in its very nature be decided unless
the appeal is first heard on merits.
4. It was further submitted that the Appellate Court without considering
the appeal on merits, could not have decided the application under Order 6 Rule
17 of CPC for amendment and in the judgments which have been cited above,
this Court while dealing with the similar issue had deprecated the practice of
deciding the application under Order 6 Rule 17 of CPC for amendment at the
appellate stage either allowing or rejecting and had in categorical words held that
the Appellate Court would commit an error in deciding the said application
without going into the merits of the case which is contrary to the settled
principle of law. It was thus prayed that the matter be remitted back to the
Appellate Court to hear the appeal on merits and then decide the amendment
application.
5. Per contra, Shri A.K. Nirankari - Advocate appearing for respondents
No.1 and 3 submits that from bare perusal of the amendment application, it
would be evident that no reasonable explanation has been provided for allowing
the application for amendment at the appellate stage and learned Appellate
Court had rightly considered this aspect and rejected the said application but he
candidly admits that the analogy which is applicable while deciding the
application under Order 41 Rule 27 of CPC would be applicable to the
application under Order 6 Rule 17 of CPC of the CPC but as the very
application under Order 6 Rule 17 of the CPC is devoid of any reasons for not
making the amendment at an early stage, the result would be the same, therefore,
the impugned order could not be disturbed.
6. It was further submitted that even in the application it has not been
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Signed by: PAWAN KUMAR
Signing time: 16-10-2023
12:52:16 PM
mentioned that what was the source of facts which the petitioner wanted to
amendment in the plaint and therefore, it cannot be said that any illegality has
been committed by the Appellate Court while rejecting the application under
Order 6 Rule 17 of the CPC. On both the counts, the application is and would
be liable to the rejected though at this stage or at the final hearing stage. Thus, it
was prayed that the petition, being devoid of any substance, be dismissed.
7. After hearing the rival contentions of the parties and perusing the
impugned order as well as the record appended to the petition, this Court finds
that the law with regard to consideration of the application under Order 6 Rule
17 of CPC for amendment at the appellate stage is very well settled. The
analogy which is applicable while deciding the application under Order 41 Rule
27 of the CPC would be applicable for the disposal of the application for
amendment in the pleadings made at the appellate stage. Thus, the Appellate
Court was required to consider the said application for amendment at the time
of final hearing of the appeal and not before that. The said proposition has
already been settled by the judgments which have been cited by counsel for the
petitioners and this Court does not find any reason to divulge from the view
which has already been taken by the Coordinate Benches of this Court.
8. Accordingly, the impugned order order dated 18.07.2019, so far as it
relates to deciding of the application under Order 6 Rule 17 is concerned, is
hereby set aside and learned Appellate Court is directed to decided the said
application afresh at the time of final hearing of the appeal. Learned Appellate
Court is also directed to decide the said appeal within a period of three
months from the date of receiving certified copy of this order.
9. With the aforesaid directions, the present petition is allowed and
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Signed by: PAWAN KUMAR
Signing time: 16-10-2023
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disposed off.
10. Interim order granted on 02.08.2019 is hereby vacated.
(MILIND RAMESH PHADKE)
JUDGE
pwn*
Signature Not Verified
Signed by: PAWAN KUMAR
Signing time: 16-10-2023
12:52:16 PM
