Madhya Pradesh High Court
Galiya Dindor vs Kamali Bhabhar on 14 May, 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 14 th OF MAY, 2024
MISC. PETITION No. 1083 of 2024
BETWEEN:-
1. GALIYA DINDOR S/O KACHARA DINDOR BHEEL,
AGED ABOUT 65 YEARS, OCCUPATION:
AGRICULTURE R/O VILLGE BHERUGARH TEHSIL
THANDLA DISTT. JHABUA (MADHYA PRADESH)
2. PRABHU DINDOR S/O KACHARA DINDOR, AGED
ABOUT 52 YEARS, OCCUPATION: AGRICULTURE
VILLAGE BHERUGARH TEHSIL THANDLA DIST
JHABUA (MADHYA PRADESH)
3. MADIYA DINDOR S/O KACHARA DINDOR, AGED
ABOUT 50 YEARS, OCCUPATION: AGRICULTURE
VILLAGE BHERUGARH TEHSIL THANDLA DIST
JHABUA (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI SHAILENDRA SHRIVASTAVA, ADVOCATE.)
AND
1. KAMALI BHABHAR W/O MADIYA BHABHAR,
AGED ABOUT 60 YEARS, OCCUPATION:
AGRICULTURE R/O VILALGE BHERUGARH
TEHSIL THANDLA DISTT. JHABUA (MADHYA
PRADESH)
2. BABLU BHABHAR S/O MADIA BHABHAR, AGED
ABOUT 40 YEARS, OCCUPATION: AGRICULTURE
VILLAGE BHERUGARH TEHSIL THANDLA DIST
JHABUA (MADHYA PRADESH)
3. MADIYA BHABHAR S/O RAOJI BHABHAR, AGED
ABOUT 64 YEARS, OCCUPATION: AGRICULTURE
VILLAGE BHERUGARH TEHSIL THANDLA DIST
JHABUA (MADHYA PRADESH)
4. RAMESH BHABHAR S/O MADIYA BHABHAR,
AGED ABOUT 34 YEARS, OCCUPATION:
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 14-05-2024
18:30:37
2
AGRICULTURE VILLAGE BHERUGARH TEHSIL
THANDLA DIST JHABUA (MADHYA PRADESH)
5. STATE OF M.P. THROUGH COLLECTOR JHABUA
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NOS.1 & 2 BY SHRI VIRENDRA KUMAR BABEL,
ADVOCATE.
RESPONDENT NO.5 / STATE BY SHRI SHALABH SHARMA, GOVERNMENT
ADVOCATE.)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
01. The petitioners have preferred this petition under Article 227 of the
Constitution of India being aggrieved by the impugned order dated 18.01.2022
passed in Civil Suit No.84-A/2022 by Civil Judge, Junior Division, Thandla,
District Jhabua (M.P.) whereby an application under Order VI Rule 17 read with
Section 151 of Civil Procedure Code, 1908 filed by the petitioners has been
dismissed.
02. Brief facts of the case are that the petitioners / plaintiffs have
preferred the civil suit before the trial Court for declaration and injunction and
during the pendency of the civil suit he has filed an application under Order VI
Rule 17 of read with Section 151 of CPC. The trial Court after hearing both the
parties has dismissed the said application vide impugned order dated
18.01.2024. Being aggrieved by the same, petitioners have preferred this
petition.
03. Counsel for the petitioners submits that before the trial Court, this
evidence is not presented. From the proposed amendments nature of suit is not
going to change, proposed amendments are necessary for proper adjudication
of this case and it has been filed to clarify the earlier pleadings hence, he prays
that impugned order be set aside and petition for amendment be allowed. In
support of his contention, learned counsel has placed reliance on a judgment
passed by the Apex Court in case of Vidyabai and others V/s Padmalatha
and another in SLP (Civil) No.4740 of 2008.
04. Per contra, counsel for the respondents No.1 to 4 opposes the
aforesaid prayer by submitting that the impugned order passed by the Court
below is just and proper and no interference is liable to be called for.
05. Counsel for the respondent No.5 submits that respondent No.5 is a
formal party, the Court may pass an appropriate order.
06. Both the parties are heard at length and perused the record.
07. From perusal of the impugned order it appears that the petitioners
have preferred the civil suit before the trial Court in the year 2022 and now the
case is fixed for plaintiffs' evidence and at the stage of plaintiffs' evidence,
petitioner has preferred this petition.
08. The Apex Court in case of Pandit Malhari Mahale V/s Monika
Pandit Mahale and others, 2020 MPLJ Online (SC) has held as under:
13. Reference in this regard may be had to a decision rendered by the
Supreme Court in the case of Pandit Malhari Mahale (supra) whereby the Court
has held as under :-
"Learned counsel for the appellant submits that evidence has already
begun and in view of the Order VI, Rule 17 of the Code of the Code of Civil
Procedure, 1908 the amendment could not have been considered unless the
Court return a finding that in spite of due diligence, the party could not have
raised the matter before the commencement of the trial.
In the present case, the Civil Judge has not returned any finding that the Court
is satisfied that in spite of due diligence, the party could not have raised the matter
before the commencement of trial. In Vidyabai and ors. vs. Padmalatha and anr.,
2009(3) M.P.L.J. (S.C.) 122 (2009) 2 SCC 409 , this Court observed in para 19 as
under:
"19. It is primal duty of the Court to decide as to whether such an
amendment is necessary to decide the real dispute between the parties. Only if
such a condition is fulfilled, the amendment is to be allowed. However, proviso
appended to Order 6, Rule 17 of the Code restricts the power of the Court. It
puts an embargo on exercise of its jurisdiction. The Court's jurisdiction in a
case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged
therein, is found to be existing, the Court will have no jurisdiction at all to allow
the amendment of the plaint."
There being no finding by the Court that the Court is satisfied in spite of
due diligence, the party could not introduce amendment before commencement
of the trial, of the Trial Judge is unsustainable. The High Court has not adverted
to the above aspect of the matter. In view of aforesaid, we allow the appeal
and set aside the order of the High Court as well as of the Civil Judge, the
amendment application stands dismissed."
09. In the instant case, the petitioners / plaintiffs in their said application
(Annexure P/3) did not state anything that in spite of due diligence, they could
not raise the matter before the commission of crime. In the case of Vidyabai
and others V/s Padmalatha and another, 2009(3) MPLJ (SC) 122 this
Court has observed as under:
"19. It is primal duty of the Court to decide as to whether such an amendment
is necessary to decide the real dispute between the parties. Only if such a condition is
fulfilled, the amendment is to be allowed. However, proviso appended to Order 6,
Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise
of its jurisdiction. The Court's jurisdiction in a case of this nature is limited. Thus,
unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court
will have no jurisdiction at all to allow the amendment of the plaint."
There being no finding by the Court that the Court is satisfied in spite of due
diligence, the party could not introduce amendment before commencement of the trial,
of the Trial Judge is unsustainable. The High Court has not adverted to the above
aspect of the matter. In view of aforesaid, we allow the appeal and set aside the order
of the High Court as well as of the Civil Judge, the amendment application stands
dismissed."
So far as the decision cited by counsel for the petitioners is concerned,
the same is distinguishable and is not of any help to decide this matter.
10. In view of the aforesaid discussion, this Court finds that no patent
illegality or jurisdictional error has been committed the learned trial Court in
rejecting the application of the petitioners under Order VI Rule 17 read with
Section 151 of CPC as the petitioner has miserable failed to show due diligence
in filing the said application.
11. With the aforesaid, this petition is devoid of merits and is hereby
dismissed.
(ANIL VERMA)
JUDGE
Divyansh
