Madhya Pradesh High Court
Dr. Vijay vs Smt. Saroj Devi on 8 February, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 8 th OF FEBRUARY, 2024
MISC. PETITION No. 3938 of 2023
BETWEEN:-
DR. VIJAY S/O LATE SHRI RATANLAL JAIN, AGED
ABOUT 77 YEARS, OCCUPATION: MEDICAL
PRACTITIONER R/O 85/17 NALIYA BAKHAL INDORE
(MADHYA PRADESH)
.....PETITIONER
( BY SHRI JITENDRA BHARAT MEHTA - ADVOCATE)
AND
SMT. SAROJ DEVI W/O VIJAY JAIN, AGED ABOUT 55
YEAR S , OCCUPATION: BUSINESS R/O 85/15 NALIYA
BAKHAL INDORE (MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI HIMANSHU JOSHI- ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition has been filed by the petitioner under Article 227 of
Constitution of India being aggrieved by impugned order dated 16/06/2023
passed in Civil Suit no. 596-A/2018 by XIV Civil Judge, Senior Division, Indore
, whereby an application filed under Order 6 Rule 17 of C.P.C filed by the
respondent has been allowed.
2/ Fact of the case in brief is that respondent/ plaintiff filed Civil Suit
no. 596-A/2018 before the trial Court for eviction from the suit premise and
recovery of arrears of rent. During pendency of the civil suit, the respondent
filed an application under Order 6 Rule 17 of C.P.C and the trial Court, after
hearing both the parties, allowed the said application vide order dated
16/06/2023. Being aggrieved by the same, petitioner has filed present petition
before this Court.
3/ Learned counsel for the petitioner submits that the impugned order
passed by the trial Court is against law and facts. As per the provision of Order
6 Rule 17 of C.P.C, no application for amendment shall be allowed after the
trial has commenced, unless the Court comes to the conclusion that in spite of
due diligence, the party could not have raised the matter before the
commencement of trial, but the respondent did not mention any such delay in
his petition and the same fact was not considered by the trial Court while
passing the impugned order, hence the proposed amendment cannot be
allowed, hence the impugned order be set aside.
4/ To bolster his contentions, he has placed reliance upon the
judgment/orders passed in the case of Umashankar Pateriya and another
Vs. Kanhaiya Lal and other [2023(3) MPLJ 165]; Vidyabai and others
Vs. Padmalatha and another [ (2009) 2 SCC 409]; Pandit Malhari
Mahale Vs. Monika Pandit Mahale [(2020)11SCC 549];
Ajendraprasadh N. Pandey and another Vs. Swami Keshavprakeshdash
N. and others [ (2006)12 SCC 1]; Sushil Kumar jain Vs. Manoj Kumar
and another [(2009) 14 SCC38]; Mashyak grihnirman Sahakari Sanstha
Maryadit Vs. Usman Habib Dhuka and others [ (2013) 9 SCC485]
5/ Learned counsel for the respondent opposed the aforesaid prayer
and prays for its rejection by submitting that the impugned order passed by the
trial Court is just and proper and does not call for any interference by this
Court.
6/ Heard learned counsel for both the parties and perused the record.
7/ It is true that as per the provision of Order 6 Rule 17 of CPC, when
evidence has already began, then amendment could not have been considered
unless the Court records finding that in spite of due diligence, the party cold
not have raised the matter before the commencement of the trial.
8/ In the instant case, the respondent does not show any reason for
non-amending pleadings before commencement of trial. The case is pending for
plaintiff's evidence and not a single plaintiff's witness has been recorded yet,
therefore, trial have to be commenced and at this stage, amendment impleading
can be incorrect.
9/ Hon'ble Supreme Court in the case of Ganesh Prasad Vs.
Rajeshwar Prasad and others [ SLP(C) NO. 28377/2018 decided on
14/03/2023, it has been held as under :
37. Thus, the Plaintiffs and Defendant are entitled to amend the
plaint, written statement or file an additional written statement. It is,
however, subject to an exception that by the proposed amendment, an
opposite party should not be subject to injustice and that any admission
made in favour of the other party is not but wrong. All amendments of the
pleadings should be allowed liberally which are necessary for
determination of the real controversies in the suit provided that the
proposed amendment does not alter or substitute a new cause of action on
the basis of which the original lis was raised or defence taken"
10/ In the instant case, it is noteworthy that plaintiff/respondent is a
widow and old aged lady. Since last 45 years, the petitioner is keeping possession
of the plaintiff's house as a tenant and as per para 3 of the plaint, the plaintiffs
income of source is the rent amount, which was paid by defendant / petitioner.
There is dispute between both the parties regarding arrears of rent. Proposed
amendments are related with the bonafide need of plaintiff regarding the suit
premise by staring her own business. It may be necessary and useful for widow /
respondent. The proposed amendment does not alter her substitute or cause of
action. It does not cause any prejudice to the petitioner/ defendant. Costs of Rs.
500/- has been imposed upon the respondent for delay in filing amendment
application.
11/ In view of the aforesaid, the impugned order passed by the trial
Court appears to be just and proper.
12/ So far as the citations of learned counsel for the petitioner are
concerned, the same are distinguishable and are of no help to him.
13/ In view of the aforesaid discussions, this Court finds that no
illegality or jurisdictional error has been committed by the trial Court in allowing
the respondent's application under Order 6 Rule 17 of C.P.C. Thus, this petition,
being devoid of merit, is hereby dismissed.
CC as per rules.
(ANIL VERMA)
JUDGE
amol
