Madhya Pradesh High Court
Raj Bahadur vs Balwan Singh on 2 August, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1 MP-426-2017
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 2 nd OF AUGUST, 2024
MISC. PETITION No. 426 of 2017
RAJ BAHADUR AND OTHERS
Versus
BALWAN SINGH AND OTHERS
Appearance:
Shri Rohit Sohgaura - Advocate for the petitioners.
ORDER
Heard on the question of admission.
2. Despite notices being issued to the respondents, nobody made
appearance on their behalf. Notices, therefore, got served through the
counsel representing them in the District Court. An affidavit in this regard
has been filed by the counsel for the petitioners. Therefore, this Court has no
other option but to decide the case after hearing learned counsel for the
petitioners.
3. This petition under Article 227 of the Constitution of India has been
filed assailing the order dated 31.08.2017 passed by Sixth Civil Judge, Class
II, Satna in Civil Suit No.94A/2015 whereby the application filed by
plaintiffs/respondent Nos.1 to 6 under Order 6 Rule 17 of CPC was allowed.
The order is being assailed by the petitioners on the ground that the fact
which was brought on record by way of amendment relating to sale deed
dated 22.09.1988, the same was very much in the knowledge of the plaintiffs
from the very beginning but in the application, no reason was assigned as to
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why the said pleading was not brought on record in time and why application
for amendment has been made after such a long delay.
4. Learned counsel for the petitioner submits that the provision of Order
6 Rule 17 and proviso attached thereto very clearly provides that if any
application for amendment is filed for bringing some facts on record at a
belated stage then it is obligatory for the party to show that the said fact even
after due diligence was not available with him.
5. As per the facts of the case, the suit has been filed by
plaintiffs/respondent Nos.1 to 6 for declaration and permanent injunction
with regard to the land situated over Khasra Nos. 1202, 1215, 1223 and
1217, Mauja Rampur Chourasi, Tahsil Raghurajnagar, District Satna
whereby it is claimed that a decree be passed in favour of plaintiffs and
against defendant Nos.4 to 7 and that they be declared as the owner of the
land which is 0.46 acres of Khasra No.1202, 0.28 acres of Khasra No.1215,
4.83 acres of Khasra No.1216, 0.31 acres of Khasra No.1217, total area 5.78
acres and 1/5 of plaintiff No.1 and 1/5 of plaintiff Nos.2 to 6 owned and
possessed by them. It is also claimed that the order dated 05.10.1984 passed
by revenue court in Case No.1A6/1994-95 be also quashed. It is also
claimed that the decree of permanent injunction be made against defendant
Nos.4 to 7 who are petitioners herein.
6. An application under Order 6 Rule 17 of CPC was filed by the
plaintiffs seeking amendment in the plaint and also to add some facts which
could not be brought to the notice of the Court at the time of filing of the
plaint. The application was filed on 02.09.2016 saying that the amendment if
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permitted to be allowed would not change the nature of suit and would also
not change any cause of action. Reply to the said application has been filed
by petitioners/defendant Nos.4 to 7 saying that the suit was filed on
15.05.2014 and as such they had full knowledge about sale deed dated
22.09.1988 as the said sale deed was executed by plaintiff Nos.2 to 6 and
defendant Nos.1 and 2 and to bring the said cause of action within time
asking amendment whereas the said amendment is barred by time and
challenging the sale deed after such a long time is a claim beyond limitation.
No affidavit of plaintiff Nos.2 to 6 was filed and this amendment is nothing
but afterthought and cannot be allowed. It is also stated in the reply that the
petitioners/defendant Nos.4 to 7 have been using the land from the date of
purchase i.e. 22.09.1988, therefore, there is no question of dispossessing the
plaintiffs forcibly from the land in question and the same is totally
misconceived and therefore, application submitted by plaintiffs under Order
6 Rule 17 CPC deserves to be set aside.
7. The Court considered the submissions made by both the parties and
passed an order on 31.07.2017 which is impugned in this petition allowing
the application under Order 6 Rule 17 CPC mentioning therein that the
plaintiffs came to know about the sale deed dated 22.09.1988 after filing the
suit and therefore, the said cause of action was brought on record. The Court
has found that the said amendment is based upon subsequent event and is
material fact for proper adjudication of the case and as such imposing cost of
Rs.500/-, the said I.A. was allowed.
8. Shri Sohgaura, learned counsel appearing for the petitioners is
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criticizing the order mainly on the ground that as per provision of Order 6
Rule 17 of CPC, no amendment can be allowed after commencement of the
trial unless the Court comes to the conclusion that inspite of due diligence,
the party could not have raised the matter before the commencement of the
trial. He submits that in the application for amendment, no reason is
assigned as to why the said amendment could not be brought to the notice of
the Court and pleadings amended in absence of any explanation given about
such delay, the application could not have been allowed.
9. Shri Sohgaura, learned counsel placed reliance on the judgments
reported in Indrabhan and others vs. Maanwati and others [2018(1) M.P.L.J.
304] and Mashyak Grihnirman Sahakari Sanstha Maryadit vs. Usman Habib
Dhuka and others (2013) 9 SCC 485. As per the observations made by the
Supreme Court in the case of Usman Habib Dhuka (supra) , the Court
observed that when application under Order 6 Rule 17 of CPC was allowed
which had been moved at a belated stage, the High Court erroneously set
aside the order of trial Court rejecting the application because suit was filed
in the year 2010 and plaintiffs were aware in the year 2009 itself about the
transaction that took place in the year 1989 and suit was filed after the said
date of knowledge that is 14.10.2010. In the case of Indrabhan (supra) , the
High Court has observed that rejecting the application for amendment by trial
Court in respect of the fact about execution of sale deed in the year 2005 and
amendment sought in 2015 not assigning reason as to what prevented him
from challenging the said sale deed earlier. The trial Court after considering
all the facts, rejected the application then High Court refused to interfere in
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the same as Court did not find any infirmity in the order passed by the trial
Court.
10. Shri Sohgaura, learned counsel further submits that in the present case
also the transaction took place somewhere in the year 1988 and suit was filed
in 2010 but an application for amendment was brought on 02.09.2016
without assigning any reason for not bringing that fact in the plaint and also
without giving any explanation for delay in bringing the said fact on record
and as such, he submits that the application for amendment was liable to be
dismissed but Court committed patent illegality in allowing the application
contrary to the respective provision.
11. I have heard the submissions made by learned counsel for the
petitioners and also perused the application filed under Order 6 Rule 17 of
CPC (Annexure P/4) but application contained the reason and knowledge
about the said fact and also the date of cause of action, therefore, situation in
the present case is not as it has been dealt with by the court in the case on
which petitioners have placed reliance. Here in the present case situation is
otherwise and factual aspect of the matter and merit of the amendment
application cannot be examined by the Court at the stage of considering the
application. Since, application contained the reason and explanation,
therefore, at the most trial Court can frame additional issue considering the
reply of defendants on amendment application to adjudicate the disputed fact
and after adducing the evidence, the trial Court may have formed its opinion
whether the relief sought by way of amendment is barred by time or not.
12. Under such circumstance when reason assigned about knowledge of
6 MP-426-2017
the said incident and date of cause of action to challenge the sale deed was
also mentioned in the application, the Court, therefore, rightly allowed the
same because nowhere it is shown that trial has been commenced and
therefore, amendment cannot be allowed. I am of the opinion, the
amendment can be made even after commencement of trial for bringing
subsequent event on record and also the fact which was not in the knowledge
of the party. Here in this case, application for amendment contained the fact
about knowledge of cause of action, as such, application has rightly been
allowed. Although, in the consequential amendment, defendant can raise an
objection about knowledge because it is a disputed fact and can be
determined only after recording evidence and if request is made, trial Court
may form an additional issue of limitation. However, at this stage, in view
of the averments made in the application for amendment, this Court cannot
interfere in the impugned order as while exercising supervisory jurisdiction
under Article 227 of the Constitution of India, this Court does not find any
patent illegality in the order.
13. Accordingly, the petition is dismissed.
(SANJAY DWIVEDI)
JUDGE
PK
