Devkibai @ Devkibai vs Krishnabai
2024 Latest Caselaw 8799 MP

Madhya Pradesh High Court

Devkibai @ Devkibai vs Krishnabai on 1 April, 2024

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

                                                     1
                          IN    THE     HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                  BEFORE
                                 HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                            ON THE 1 st OF APRIL, 2024
                                         MISC. PETITION No. 3298 of 2022

                         BETWEEN:-
                         DEVKIBAI @ DEVKIBAI W/O SHRI MITTHANLAL, AGED
                         ABOUT 62 YEARS, OCCUPATION: HOUSEWIFE R/O
                         VILLAGE BAKHTAWAR CHAL WARD NO. 18 GALI NO.9
                         TULSIPUR RAJNANDGAON, DISTRICT RAJNANDGAON
                         (CHHATTISGARH)

                                                                             .....PETITIONER
                         (BY SHRI SANJAY SHARMA - ADVOCATE)

                         AND
                         1.    KRISHNABAI W/O SHRI MITTHANLAL, AGED
                               ABOUT 54 YEARS, R / O VILLAGE BANIYATOAL,
                               TEHSIL   WARASEONI      DISTRICT BALAGHAT
                               (MADHYA PRADESH)

                         2.    SANTOSHIBAI @ REKHABAI W/O MAKBOOL
                               ANSARI R/O JABALPUR TEHSIL AND DISTRICT
                               JABALPUR (MADHYA PRADESH)

                         3.    KOTHULAL S/O NARBAD SENDE, AGED ABOUT 66
                               YE A R S , R/O VILLAGE BANIYATOLA, TEHSIL
                               WARASEONI DISTRICT BALAGHAT (MADHYA
                               PRADESH)

                         4.    PREMLAL S/O NARBAD SENDE, AGED ABOUT 74
                               YE A R S , R/O VILLAGE BANIYATOLA, TEHSIL
                               WARASEONI DISTRICT BALAGHAT (MADHYA
                               PRADESH)

                         5.    THE STATE OF MADHYA PRADESH THROUGH
                               COLLECTOR BALAGHAT TEHSIL AND DISTRICT
                               BALAGHAT (MADHYA PRADESH)

                                                                           .....RESPONDENTS
                         (SHRI SURENDRA TIWARI - PANEL LAWYER FOR RESPONDENT 5/STATE)

Signature Not Verified
Signed by: SWETA SAHU
Signing time: 4/2/2024
5:58:32 PM
                                                             2
                               This petition coming on for admission this day, th e court passed the
                         following:
                                                             ORDER

This misc. petition has been preferred by the petitioner/defendant 1 challenging the order dtd.02.07.2022 passed by Additional Judge to the court of First Civil Judge Junior Division, Waraseoni, whereby plaintiffs' application under Order 6 Rule 17 CPC has been allowed prior to commencement of plaintiffs' evidence in pursuance of judgment of remand passed by first appellate court.

2 . Learned counsel for the petitioner/defendant 1 submits that after

judgment of remand passed by first appellate court, trial court had no jurisdiction to allow the application under Order 6 Rule 17 CPC filed by plaintiffs whereby plaintiffs proposed amendment in para 1 of plaint and in the array of defendants, which is amounting to withdrawal of admissions.

3 . Learned counsel submits that originally the plaintiff 1 was claiming herself to be second wife of Late Mitthanlal Shende and later on by way of amendment, she is alleging herself to be first wife and similarly by way of amendment in the array of defendants, the defendant 1 has been shown as daughter of Dayaram Ramteke in place of widow of Mitthanlal Shende. Learned counsel further submits that the aforesaid amendment is not permissible and in any case the plaintiffs cannot be permitted to withdraw the admissions made in favour of defendant 1. With the aforesaid submissions, he prays for allowing the misc. petition.

4 . None is appearing for respondents 1-2, despite service of summons on them.

5. Heard learned counsel for the petitioner and perused the record.

6. By way of judgment of remand dtd. 22.03.2022, first appellate court has allowed civil appeals filed by plaintiffs and defendant 1, upon allowing their separate applications filed under Order 41 Rule 27 CPC, with the direction to trial court to decide the civil suit afresh after giving due opportunity of adducing evidence to the concerning parties. As such it cannot be said that first appellate court has not made order of wholesale remand.

7. Plaintiff 1 and defendant 1 both are claiming themselves to be wives of Mitthanlal. By way of proposed amendment in para 1 of the plaint, the plaintiffs have been permitted to incorporate amendment to the effect that the plaintiff 1 is first wife of Mitthanlal, whereas Baranbai is second wife. Similarly, by amendment in cause title the plaintiffs have been permitted to show the defendant 1 as daughter of Dayaram Ramteke. As such it cannot be said that by way of amendment the plaintiffs are withdrawing some admissions.

8. Even after proposing/permitting aforesaid amendment in the plaint, the defendant 1 is at liberty to make consequential amendment in the written statement and with a view to prove herself to be wife of Mitthanlal and that the plaintiff 1 is not first wife of Mitthanlal Shende, she can also adduce evidence.

9 . In view of the aforesaid discussion, in my considered opinion trial court does not appear to have committed any illegality in allowing the plaintiffs' application under Order 6 Rule 17 CPC.

10. Resultantly, this misc. petition fails and is hereby dismissed.

11. Pending application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE ss