Madhya Pradesh High Court
Anwar Kha vs Mahommad Salim Khan on 14 October, 2024
Author: Anil Verma
Bench: Anil Verma
NEUTRAL CITATION NO. 2024:MPHC-GWL:17660
1 MP-2851-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 14th OF OCTOBER, 2024
MISC. PETITION No. 2851 of 2024
ANWAR KHA AND OTHERS
Versus
MAHOMMAD SALIM KHAN
Appearance:
Shri Mohan Lal Bansal, Advocate for the petitioners.
Shri Guru Datt Sharma and Shri Sunil Kumar Gupta, Advocates for
the respondent
ORDER
Present miscellaneous petitioner has been filed under Article 227 of
Constitution of India being aggrieved by the impugned order dated
26.4.2024 passed by 7th Civil Judge, Varg-II, Gwalior in Civil Suit
No.430A/2016 whereby an application under Order 6 Rule 17 of CPC filed
by petitioner/plaintiff has been dismissed.
Brief facts of the case are that petitioners/plaintiffs have filed the
instant suit for eviction on the basis of relationship of landlord and tenant.
One of the ground for eviction is that respondent/defendant in their written
statement denied the relationship of landlord and tenant and claiming
themselves as owner of suit property. Plaintiffs filed another suit for
declaration and permanent injunction in respect of the suit premises before
12th Additional District Judge, Gwalior in case bearing No.81A/2015 which
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has been decided in favour of petitioners and petitioners have been declared
owner of suit premises. During pendency of civil suit, petitioners have
preferred an application under Order 6 Rule 17 of CPC which has been
dismissed by trial Court by the impugned order. Being aggrieved by the
same, petitioners have preferred this petition.
Learned counsel for petitioner contended that learned Court below has
dismissed the application without considering the relevancy of proposed
amendment whereby petitioners merely wanted to add an alternative plea in
the pleadings and no prejudice is likely to be caused to the other side. It has
been argued that since trial is just and fair, therefore, petitioners are free to
move amendment application and since amendment application does not
have any adverse effect on the defendants and it is merely clarifying in
nature which needs to be allowed. To bolster his submission, learned counsel
for petitioner placed reliance in the matter of Nafeesa Usmani (Smt.) and
another Vs. Smt. Anwar Jahan, 2009 2 MPWN 24 and order dated 10.9.2024
passed by Co-ordinate Bench of this Court in the case of Smt. Savitri and
others Vs. Gopiram Dhandhi and others (MP No.4579 of 2022) and prayed
that petition may be allowed.
Per contra, learned counsel for respondent while supporting the order
impugned herein has opposed the prayer made by counsel for petitioners and
prayed for dismissal of present petition and had contended that as Court
below has passed the impugned order by applying correct principle of law
while dismissing the application under Order 6 Rule 17 of CPC, no
interference is required. To bolster his submission learned counsel for
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respondent placed reliance in the matter of Tribuvanshakar Vs. Amrutlal,
(2014) 2 SCC 778 and prays that petition may be dismissed.
Heard both the parties and length and perused the entire record.
The Division Bench of this Court in the case of Nafeesa
Usmani(Supra) has held as under :-
"8. So far as the rejection of amendment application is
concerned, according to us, the same has also been
rejected in cryptic manner. In para 4 of the plaint, there
is specific plea of plaintiffs that she bought the suit
accommodation from one Nareshchand Soni vide
registered sale deed dated 9.8.2001. Therefore, plaintiffs
are seeking to amend their plaint by adding the
proposed amendment. An alternative plea has been
proposed by plaintiff that in case, they fail to prove the
landlord-tenant relationship, they are entitled for decree
of possession on the basis of title. According to us, the
learned trial Court erred in rejecting the plaintiff's
amendment application. Because, an alternative plea is
always permitted to be raised. Accordingly, we hereby
allow the amendment application filed by plaintiffs
which has been rejected by the impugned order."
In the case of Nafeesa Usmani (Supra), this Court has allowed the
petition under Order 6 Rule 17 of CPC seeking to amend the plaint by
adding alternative plea in case they fail to prove the landlord tenant
relationship, they would be entitled for decree of possession on the basis of
title.
The judgment which has been cited by counsel for respondent is based
upon different set of facts is not applicable in the present case.
In view of the law laid down by Division Bench of this Court in the
case of Nafeesa Usmani (Supra), this Court finds that impugned order dated
26.4.2024 passed by learned trial Court is not sustainable. This petition
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succeeds and it is hereby allowed and impugned order dated 26.4.2024 is
hereby set aside. Trial Court is directed to allow the petitioners/plaintiffs to
incorporate amendment in the plaint which has sought by way of filing an
application under Order 6 Rule 17 of CPC.
Needless to mention that defendant/respondent are free to amend their
written statement by way of consequential amendment.
With the aforesaid direction, present petition is allowed.
No order as to cost(s).
(ANIL VERMA)
JUDGE
R
