Madhya Pradesh High Court
Hariom Jha vs Amaanshri on 29 April, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:9443
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 29th OF APRIL, 2025
MISC. PETITION No. 1970 of 2025
HARIOM JHA
Versus
AMAANSHRI AND OTHERS
Appearance:
Shri Rohit Bansal - Advocate for the petitioner.
Shri M.S. Jadon - Govt. Advocate for the State.
ORDER
The present petition under Article 227 of the Constitution of India
is preferred against the order dated 22.02.2025 passed by III Civil Judge
Junior Division, Ganjbasoda, District Vidisha in Civil Suit No.105-A of
2018, whereby an application under Order 6 Rule 17 CPC read with
Section 151 of CPC preferred by the plaintiffs/respondents for
amendment in the plaint was allowed.
2. Facts in nutshell are that the plaintiffs/respondents No.1 and 2
have filed a suit for declaration of title and permanent injunction with
respect to the suit land on the premise that the petitioner/defendant No.l
is trying to make encroachment thereon. The petitioner/defendant No.1
appeared and filed written statement denying the averments made in the
plaint. In the pending civil suit, application under Order VI Rule 17 read
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with Section 151 of CPC was filed by the plaintiffs seeking amendment
in the plaint to the effect that that the possession of the land in question
be delivered to the plaintiff. The said application was opposed by the
defendants (petitioners herein) on the ground that the amendment would
change the nature of suit and therefore said amendment cannot be
allowed to be carried out. Opposition was also made on the fulcrum that
the plaintiffs did not disclose as to why the amendment claiming relief of
possession was not brought in time and thus after commencement of
trial as per proviso appended to Order VI Rule 17 of CPC amendment
cannot be permitted to be incorporated.
3. Learned counsel for the petitioner/defendant No.1 has submitted
that the only question which is required to be gone into at the stage of
consideration of an application under Order 6 Rule 17 of CPC by Court
is as to whether such an amendment would be necessary for decision of
real controversy between the parties of the suit and at that stage, the
Court cannot go into question of merits of the amendment and as the
learned Trial Court had went on to decide the merits of the application,
without deciding the relevancy, the findings are perverse and illegal,
therefore, deserves to be quashed.
4. It was further submitted that since the proposed amendment is
not necessary for lawful adjudication of the matter, therefore, allowing
the application for amendment is bad in law, as by the amendment, the
nature of suit would change and new cause of action would arise,
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therefore, the said amendment application should not have been allowed,
therefore, the Court below had erred in allowing the application.
5. It was further submitted that the technicalities of law should not
be permitted to hamper the Court in administration of justice between
the parties and also amendments are not required to be allowed in the
pleadings just to avoid multiplicity of litigation. In support of his
submission, reliance was placed in the matter of Suryadeep Garg vs.
Neha Garg reported in 2016(3) MPLJ 689.
6. On the basis of the aforesaid arguments, it was prayed that the
present petition be allowed and impugned order be set aside.
7 . Per contra, Govt. Advocate for the respondent No.4/State has
opposed the prayer so made by counsel for the petitioner and had prayed
for dismissal of the petition alleging that no illegality has been
committed by the learned Trial Court in passing the impugned order
dated 22.02.2025.
8. Heard counsel for the parties and perused the record.
9. Order 6 Rule 17 CPC, as is well-known, pertains to the
amendment of pleadings in a civil suit. It reads as under :-
"17. Amendment of pleadings.--The Court may at
any stage of the proceedings allow either party to alter or
amend his pleadings in such manner and on such terms
as may be just, and all such amendments shall be made
as may be necessary for the purpose of determining the
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real questions in controversy between the parties:
Provided that 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."
10. What can be understood from a reading of the above provision
is that, (a) amendment of pleadings can be allowed at any stage; (b)
amendment must be necessary to determine the "real question of
controversy" "inter se parties"; (c) if such amendment is sought to be
brought after commencement of trial the Court must, in allowing the
same has to come to a conclusion that in spite of best efforts on the part
of the party to the suit, the same could not have been brought before that
point of time, when it was actually brought. The law with regard to the
amendment in the pleadings in that regard is required to be considered.
The settled rule is that the Courts should adopt a liberal approach in
granting leave to amend pleadings, however, the same cannot be in
contravention of the statutory boundaries placed on such power.
11. The Apex Court in the matter of North Eastern Railway
Administration, Gorakhpur v. Bhagwan Das, reported in (2008) 8 SCC
511 has held as under:
"16. Insofar as the principles which govern the
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question of granting or disallowing amendments under
Order 6 Rule 17 CPC (as it stood at the relevant time) are
concerned, these are also well settled. Order 6 Rule 17
CPC postulates amendment of pleadings at any stage of
the proceedings. In Pirgonda Hongonda Patil v.
Kalgonda Shidgonda Patil [AIR 1957 SC 363] which
still holds the field, it was held that all amendments
ought to be allowed which satisfy the two conditions : (a)
of not working injustice to the other side, and (b) of
being necessary for the purpose of determining the real
questions in (2008) 8 SCC 511 8|SLP(C)30324/2019
controversy between the parties. Amendments should be
refused only where the other party cannot be placed in
the same position as if the pleading had been originally
correct, but the amendment would cause him an injury
which could not be compensated in costs. [Also see
Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar
(1990) 1 SCC 166.]"
12. Over the years, through numerous judicial precedents certain
factors have been outlined for the application of Order 6 Rule 17.
Recently, the Apex Court in the matter of Life Insurance Corporation of
India Vs. Sanjeev Builders Private Limited & Another reported in
(2022) 16 SCC 1, after considering various precedents in regard to the
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amendment of pleadings, had culled out certain principles, which are
reproduced as under:-
"71. Our final conclusions may be summed up
thus:
71.1. Order II Rule 2 CPC operates as a bar
against a subsequent suit if the requisite conditions for
application thereof are satisfied and the field of
amendment of pleadings falls far beyond its purview.
The plea of amendment being barred under Order II Rule
2 CPC is, thus, misconceived and hence negatived.
71.2. All amendments are to be allowed which are
necessary for determining the real question in
controversy provided it does not cause injustice or
prejudice to the other side. This is mandatory, as is
apparent from the use of the word "shall", in the latter
part of Order VI Rule 17 of the CPC.
71.3. The prayer for amendment is to be allowed:
71.3.1. If the amendment is required for effective
and proper adjudication of the controversy between the
parties.
71.3.2. To avoid multiplicity of proceedings
provided
(a) the amendment does not result in injustice to
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the other side,
(b) by the amendment, the parties seeking
amendment does not seek to withdraw any clear
admission made by the party which confers a right on the
other side and
(c) the amendment does not raise a time barred
claim, resulting in divesting of the other side of a
valuable accrued right (in certain situations).
71.4. A prayer for amendment is generally required
to be allowed unless:
71.4.1. By the amendment, a time barred claim is
sought to be introduced, in which case the fact that the
claim would be time barred becomes a relevant factor for
consideration,
71.4.2. The amendment changes the nature of the
suit, 71.4.3. The prayer for amendment is malafide, or
71.4.4. By the amendment, the other side loses a
valid defence.
71.4.5. In dealing with a prayer for amendment of
pleadings, the court should avoid a hyper technical
approach, and is ordinarily required to be liberal
especially where the opposite party can be compensated
by costs.
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71.4.6. Where the amendment would enable the
court to pin-pointedly consider the dispute and would aid
in rendering a more satisfactory decision, the prayer for
amendment should be allowed.
71.4.6. Where the amendment merely sought to
introduce an additional or a new approach without
introducing a time barred cause of action, the amendment
is liable to be allowed even after expiry of limitation.
71.4.8. Amendment may be justifiably allowed
where it is intended to rectify the absence of material
particulars in the plaint.
71.4.9. Delay in applying for amendment alone is
not a ground to disallow the prayer. Where the aspect of
delay is arguable, the prayer for amendment could be
allowed and the issue of limitation framed separately for
decision.
71.4.10. Where the amendment changes the nature
of the suit or the cause of action, so as to set up an
entirely new case, foreign to the case set up in the plaint,
the amendment must be disallowed. Where, however, the
amendment sought is only with respect to the relief in the
plaint, and is predicated on facts which are already
pleaded in the plaint, ordinarily the amendment is
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required to be allowed.
71.4.11. Where the amendment is sought before
commencement of trial, the court is required to be liberal
in its approach. The court is required to bear in mind the
fact that the opposite party would have a chance to meet
the case set up in amendment. As such, where the
amendment does not result in irreparable prejudice to the
opposite party, or divest the opposite party of an
advantage which it had secured as a result of an
admission by the party seeking amendment, the
amendment is required to be allowed. Equally, where the
amendment is necessary for the court to effectively
adjudicate on the main issues in controversy between the
parties, the amendment should be allowed. (Pls. See
Vijay Gupta v. Gagninder Kr. Gandhi & Ors. reported in
2022 SCC OnLine Del 1897)"
13. A perusal of the law laid down by the Apex Court makes it
clear that the amendments are to be allowed barring the eventualities,
i.e., they have effect of changing the nature of litigation or they cause
prejudice to the other party or an admission is being sought to be
withdrawn by the party on the strength of amendment. In the present
case, none of the aforesaid eventualities exists and as the case is at the
stage of plaintiff's evidence, in the considered view of this Court, the
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Trial Court did not commit any error while allowing the application for
amendment.
14. Further, the Hon'ble Supreme Court in the matter of Baldev
Singh and Others v. Manohar Singh & Another reported in (2006) 6
SCC 498 has held as under:
"17. Before we part with this order, we may also
notice that proviso to Order 6 Rule 17 CPC provides that
amendment of pleadings shall not be allowed when the
trial of the suit has already commenced. For this reason,
we have examined the records and find that, in fact, the
trial has not yet commenced. It appears from the records
that the parties have yet to file their documentary
evidence in the suit. From the record, it also appears that
the suit was not on the verge of conclusion as found by
the High Court and the trial court. That apart,
commencement of trial as used in proviso to Order 6
Rule 17 in the Code of Civil Procedure must be
understood in the limited sense as meaning the final
hearing of the suit, examination of witnesses, filing of
documents and addressing of arguments. As noted
hereinbefore, parties are yet to file their documents, we
do not find any reason to reject the application for
amendment of the written statement in view of proviso
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to Order 6 Rule 17 CPC which confers wide power and
unfettered discretion to the court to allow an amendment
of the written statement at any stage of the proceedings."
15. In this case, it has come on record that the plaintiffs' evidence
is yet to start, which is even reflected from the impugned order, thus, in
the light of the aforesaid enunciation, it can be said that trial had not
commenced, thus, the amendment would not be hit by the Proviso.
16. This Court, in light of the aforesaid discussion, finds that to
evade multiplicity of litigation, amendment application should have been
allowed, thus, had rightly been allowed. Obviously, the Court below had
not exceeded its jurisdiction holding that the amendment would not
change the nature of suit as there was no change asked for in the
pleadings and in the existing facts and circumstances, the relief,
according to plaintiff, under misconception could not be claimed,
therefore, is being sought to be added additionally by way of amendment
application. The impugned order dated 22.02.2025 being sustainable, is
hereby affirmed. The judgment cited on behalf of the petitioners in the
matter of Suryadeep Garg vs. Neha Garg (supra) is of no help, as they
are based on different facts.
17. Looking to the controversy involved in the matter, this Court
in the interest of justice deems it fit to direct the learned Trial Court to
expedite the hearing and shall decide the matter as expeditiously as
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possible in accordance with law, as the same is pending since the year
2018.
18. With the aforesaid observation, the present petition is
dismissed and disposed of.
(MILIND RAMESH PHADKE)
JUDGE
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