Madhya Pradesh High Court
Jeevan vs Kapoori Bai on 30 April, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
Misc. Petition No.3377 of 2024
JEEVAN AND OTHERS
Vs.
KAPOORI BAI AND OTHERS
APPERANCE
Shri Rajeev Shrivastava - Advocate for the petitioner.
Shri M.S. Jadon - Government Advocate for the State.
Shri Shivam Kumar Kurchaniya - Advocate for the respondent
No.1.
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Reserved on : 17/04/2025
Delivered on : 30/4/2025
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This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Hon'ble Shri Justice Milind
Ramesh Phadke pronounced/passed the following:
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ORDER
The present petition, under Article 227 of the Constitution of
India, is preferred against the order dated 30.05.2024 passed by First
Civil Judge, Class-I, Khaniyadaha, Shivpuri in Civil Suit No.37-A of
2021, whereby, petitioners' application filed under Order 8 Rule 1 of
CPC as well as application filed under Order 6 Rule 17 of CPC were
rejected.
2. Facts in nutshell are that the plaintiff/respondent No.1- Kapoori
Bai had filed a suit for declaration and permanent injunction against the
petitioners and the State alleging that the land in question, which is
situated at Village Nadavan Saveri, Tehsil Khaniyadhana, District
Shivpuri belonged to her father, Parvata Jha, which was succeeded by
her after his death. The said Parvata Jha was having three daughters,
namely, Savi, Kapoori Bai and Anguri. The land in question was
obtained by him in a family partition. After his death, the plaintiff -
Kapuri Bai and other two daughters became share holders of 1/3rd each.
During lifetime of Parvata Jha, he had orally partitioned the land
amongst three daughters and on the basis whereof, they are/were
cultivating the land. Though the plaintiff/Kapuri Bai and her other two
daughters being legal heirs of Parvata were entitled for 1/3 share each
but one of the daughter Savi by playing fraud with her father Parvata
obtained a Will in the name of her sons/defendants No.1 and
2/petitioners No.1 and 2, namely, Jeevan and Udal and accordingly,
mutated their names over the land in question in the revenue records
without having any right, which was bad in law. The petitioners have
submitted their written statement on 04.07.2022.
3. In the pending civil suit, application under Order VI Rule 17 read
with Section 151 of CPC as well as the application under Order 8 Rule
1(3) of CPC were filed by the petitioners/defendants No.1 to 3 for
taking certain facts and documents on record, which can go to the root
of the matter and were important for complete adjudication. The said
applications were opposed by the plaintiffs (respondents herein) on the
ground that the facts and documents which were sought be taken on
record, are not required for just disposal of the matter. Learned Trial
Court vide impugned order dated 30.05.2021 rejected both the above
applications of the petitioners/defendants. Being aggrieved by the said
order, the instant petition has been filed.
4. Learned counsel for the petitioners has submitted that the only
question which is required to be gone into at the stage of consideration
of the applications by the Court is whether such facts and documents
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 such facts and documents and as the learned Trial Court had went on
to decide the merits of the applications, without deciding the relevancy,
the findings are perverse and illegal, therefore, deserves to be quashed.
5. It was further submitted that since the proposed facts and
documents are necessary for lawful adjudication of the matter, therefore,
rejection of the applications for taking certain facts and documents is
bad in law, as by allowing the said applications, the nature of suit would
not change and no new cause of action would arise, if the applications
are allowed and also since the trial is at a preliminary stage i.e., that of
plaintiff's evidence the applications should have been allowed,
therefore, it is submitted that the Court below had erred in rejecting the
application.
6. It was further submitted that at the time of deciding the
application under Order 6 Rule 17 CPC, the trial Court cannot go into
the question of merits of amendment and it is only required to go into
the aspect of relevancy of said amendment. In that regard, he had placed
reliance in the matter of Andhra Bank vs. Abn Amro Bank N.V. &
Others reported in AIR 2007 SC 2511.
7. It was further submitted that even the amendment sought for
would unable the Court to pin pointedly consider the real dispute
between the parties and thereby deliver the decision more satisfactorily,
but the learned trial Court misdirected itself in going into the merits of
the amendment and thus, the very order of rejection suffers from
perversity and illegality, therefore, is liable to be set aside.
8. It was further submitted that the power to allow the applications
for taking certain facts and documents is wide and can be exercised at
any stage of proceedings in the interest of justice on the guidelines
which have been laid down by the Hon'ble Apex Court and this Court in
catena of their judgments. Though he admits this fact that amendment
cannot be claimed as a matter of right and in all circumstances, but he
submits that it is equally true that the Court while deciding such prayer
should not adopt hyper technical approach and liberal approach should
be the general rule.
9. Lastly, it was submitted that technicalities of law should not be
permitted to hamper the Court in administration of justice between the
parties and also amendments are required to be allowed in the pleadings
to avoid multiplicity of litigation. He has further placed reliance in the
matter of Rajesh Kumar Aggarwal & Ors. Vs. K. K. Modi & Others
reported in AIR 2006 SC 1647. It was, thus, prayed that the present
petition be allowed and impugned order be set aside.
10. Per contra, learned counsel appearing for the respondents had
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 30.05.2024, as the petitioners have not given any justifiable
reason as to why they did not place on record such facts and documents
earlier.
11. Heard counsel for the parties and perused the record.
12. According to the provisions of Order 6 Rule 17 of CPC with
regard to amendment of pleadings, it is trite that the Court may at any
stage of the proceedings can 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 real questions in controversy between the parties but it
also provides that no application for amendment shall be allowed after
the trial has commenced, unless the Court comes to a conclusion that in
spite of due diligence, the party could not have raised the matter before
the commencement of trial.
13. As it is very well settled that at the time of adjudication of an
application under Order 6 Rule 17 CPC, the relevancy of the
amendment can be gone into and not the merits of the amendment,
which the learned trial Court had tried to, this Court finds that rejection
of the application for amendment is not sustainable.
14. 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 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. Obviously, the Court below exceeded its jurisdiction holding
that the amendment would change the nature of suit ignoring the fact
that there was no change asked for in the pleadings and in the existing
facts and circumstances, the relief, according to defendants/petitioners,
under misconception could not be claimed, therefore, is being sought to
be added additionally by way of amendment application.
17. So far as rejection of the application under Order 8 Rule 1(3) of
CPC to the extent of not taking documents like death certificate of
deceased Parvat, certified copy of order dated 06.05.2022 of Naib
Tahsildar, Moharikla, Tehsil Khandiyadhana and revenue records is
concerned, this Court in the obtaining facts and circumstances of the
case finds that the said documents sought to be placed on record appear
to be important and material documents for just and proper disposal of
the lis, therefore, to do complete justice in the matter, said documents
ought to have taken on record by the Trial Court.
18. Accordingly, the impugned order dated 30.05.2024 being
unsustainable, is hereby set aside. The applications filed by the
petitioners under Order VI Rule 17 of CPC and under Order 8 Rule 1(3)
read with Section 151 of CPC respectively are allowed. Learned Trial
Court is directed to proceed with the matter accordingly.
19. With the aforesaid observation and directions, the present petition
is allowed and disposed of.
(Milind Ramesh Phadke)
Judge
PAWAN
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Date: 2025.04.30 17:09:14 +05'30'
