Madhya Pradesh High Court
Rajesh Kumar Shrivastav vs Shri Manish Singh on 10 January, 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. 3212 of 2023
PIYUSH BHARGAVA
Versus
BHARAT BHUSHAN BHARGAVA (SINCE DECEASED)
THROUGH LRS AND OTHERS AND OTHERS
---------------------------------------------------------------------------------------
Appearance:
Shri Sanjay Kumar Dwivedi - Advocate and Shri Somyadeep
Dwivedi - Advocoate for the petitioner.
Shri Praveen Surange - Advocate for the respondent No.3.
Shri Siddharth Sharma - Advocate for the respondent No.4.
-------------------------------------------------------------------------------------
Reserved on : 17/12/2024
Delivered on : 10/01/2025
-------------------------------------------------------------------------------------
This petition having been heard and reserved for orders,
comiing on for pronouncement this day, the Hon'ble Shri Justice
Milind Ramesh Phadke pronounced/passed the following:
-------------------------------------------------------------------------------------
ORDER
The instant petition under Article 227 of the Constitution of
India is directed against the order dated 02.03.2023 passed by IX
Additional District Judge, Gwalior in Civil Suit No.RCSA/445/2016,
whereby an application preferred by respondent/defendant No.3 under
Order 6 Rule 17 read with Section 151 of CPC for amendment in the
written statement was allowed holding it to be a consequential
amendment.
2. The aforesaid order has been assailed on the ground that the
amendment was allowed by the Trial Court ignoring the fact that there
is no written statement filed on behalf of respondent/defendant No.3
and the amendment sought was with regard to written statement filed
by defendant No.1 and was not verified independently by
respondent/defendant No.3, though he had adopted the said written
statement and in absence of such verification there cannot be said to
be a written statement in the eyes of law on behalf of
respondent/defendant No.3, which in turn would mean that there are
no pleadings to which amendment can be made.
3. Short facts leading to the present controversy are that the
petitioner/plaintiff had filed a suit for declaration, partition and
injunction against the present respondents and the deceased
respondents. On 10.12.2016 written statement was filed by
respondent/defendant No.1 (now deceased) and the pleadings raised in
the plaint were denied. Defendant no. 3, 4 and 5 had not filed any
separate written statement except for adopting the written statement
filed by defendant No.1. A separate written statement was filed by
defendant No.2, wherein, she had supported the pleadings raised by
the plaintiff.
4. On 29.08.2017 an application for amendment of the plaint
filed by the petitioner/plaintiff was filed after death of his mother Smt.
Suman Bhargava. A reply dated 20.11.2017 to the application was
tendered by the defendant No.1 Late Bharat Bhushan Bhargava and
defendant No.3. To traverse the pleadings of the defendants in their
replies, another application under Order 6 Rule 17 of CPC dated
11.01.2023 was preferred by the petitioner/plaintiff . The said
application was also replied by the respondent/defendant No.3 on
19.01.2023.
5. The Trial Court decided these applications vide order dated
02.02.2023 and the application 29.08.2017 preferred by the
petitioner/plaintiff was rejected, however, the subsequent application
dated 11.01.2023 was partially allowed. The amendment prayed in
para 1 and 2 of the said application was rejected but the amendments
proposed as per para 13(B) and 24 (A )and (B) to the plaint pertaining
to the litigation pending between the parties before forum were
allowed.
6. Subsequently, an application dated 10.02.2023 under Order 6
Rule 17 CPC was filed by the defendant No.3, wherein consequential
and certain independent amendments in the written statement were
proposed therein. The said application was opposed by the present
petitioner/plaintiff alleging that since defendant No.3 had not filed any
separate written statement but has adopted written statement filed by
the defendant No.1, without complying with the requirements of
verification, which is necessary for proper adoption as per CPC the
said amendment should not be allowed.
7. Learned Trial Court allowed the said application subject to
payment of cost of Rs.200/- and while allowing the said application it
had recorded a finding that amendments proposed in the written
statement by defendant No.3 are related to the subject matter of the
suit and should be permitted to be made despite being belated but as it
had ignored the legal position of law as regards adoption of written
statement, aggrieved by the aforesaid order the present petition has
been filed.
8. Learned counsel for the petitioner while placing reliance in
the matter of Babulal Agarwal Vs. Smt. Jyoti Shrivastava reported in
AIR (2000)Madhya Pradesh 83; had argued before this Court that the
Trial Court has materially erred in allowing the amendment
application without considering the fact that there is no written
statement of defendant no.3 in existence, as defendant No.3 has only
adopted the written statement of defendant no.1 and the said written
statement could only be said to be adopted if the pleadings in the same
are independently verified by the adoptee and in absence of such
verification, there is no written statement in the eyes of law, which in
turn would mean that the there are no pleadings to which an
amendment can be made and since the Trial Court has exercised its
jurisdiction with material irregularity by allowing the application
without adverting to this objection of non existence of written
statement of defendant No.3, the impugned order is liable to be set
aside.
9. Further referring to the judgment of the Hon'ble Apex Court
in the matter of Gurdial Singh and Ors. Vs. Raj Kumar Aneja and
Ors. reported in AIR (2002) SC 1003; it is argued that the impugned
order has been passed without adverting correct position of law as
regards the scope of consequential amendments, as introduction of
fresh facts/pleas under garb of consequential amendments is
impermissible in law and since defendanat No.3 has sought to
incorporate fresh pleas by seeking amendment of para 3 of para wise
reply and para 12 to 15 of the additional submissions made in the
written statement of defendant no.1, such amendments under guise of
consequential amendments being prohibited could not have been
permitted. Thus, the impugned order suffers from perversity and
illegality, thus, is liable to be set aside.
10. Another ground of non appreciation of the grounds raised in
the reply has been argued by the counsel for the petitioner and it has
been submitted that the Trial Court has allowed the application on
solitary ground that the proposed amendments are related to subject
matter of the suit but there are no finding as regards necessity of
amendment for proper adjudication of the case nor there is a reasoning
for condoning delay in preferring the amendments, thus, the said order
is without due application of mind and the scope of provisions of
Order 6 Rule 17 CPC as delineated by the various Courts, thus the
impugned order is liable to be set aside.
11. On the other hand, learned counsel for the respondents has
argued that since the very order by which the application for adoption
of written statement filed by the defendant No.1 preferred on behalf of
defendant No.3 was allowed and was never challenged by the
petitioner/plaintiff, now, at this juncture, he is precluded from agitating
this fact that there is no written statement filed on behalf of defendant
No.3 on record available, therefore, the consequential amendment,
which has been allowed by the learned trial Court to be incorporated
in written statement is bad in law and is not correct.
12. While referring to the judgment of Apex Court in the matter
of Vidyawati Gupta & Ors vs Bhakti Hari Nayak & Ors reported in
(2006)02 SCC 777 and in the matter of Akshay Mehta & ors. Vs. Smt.
Usha Datta passed by Delhi High Court in CS(OS) 2/2007 dated
05.12.2017; learned counsel had argued that the contention of the
petitioner that the written statement filed on behalf of defendant No.1
(since deceased), adopted by defendant No.3 without verification is no
written statement in the eyes of law, as it doesn't contain any
verification by defendant No.3 is not sustainable, as though
verification is mandated under Order 17 Rule 15 CPC, however, lack
of verification is a mere irregularity which can be cured and lack of
verification does not invalidate or efface the documents from the
records of the case. It was further argued that if the pleadings are not
verified, it does not seize to be a pleading but is merely an irregularity
and irregularity can be cured at any later point of time. It was further
argued that lack of verification cannot be lead to conclusion that the
same is not a written statement in the eyes of law and thereby permit
the applicant to file a fresh written statement.
13. Learned counsel for the respondents had further argued that
the intention of the legislature in bringing about the various
amendments in the Code with effect from 1st July, 2002 were aimed at
eliminating the procedural delays in the disposal of civil matters. The
amendments effected to Section 26, Order IV and Order VI Rule 15,
are also geared to achieve such object, but being procedural in nature,
they are directory in nature and non-compliance thereof would not
automatically render the pleadings non-est and a stand that written
statement in absence of any verification would be no written statement
in the eyes of lay would be two pedantic and would be contrary to
accepted principles involving interpretation of statutes. On the
aforesaid premise, learned counsel for the respondents had argued that
the petition has no force and, therefore, is liable to be dismissed.
14. Heard learned counsel for the parties and perused the record.
15. Order 6 Rule 1 of CPC defines pleading and mean a plaint
or a written statement. Order 6 Rule 2(1) of CPC states that every
pleading shall contain, and contain only, a statement in a concise form
of the material facts on which the party pleading relies for his claim or
defence, as the case may be, but not the evidence by which they are to
be proved.
16. Order 8 Rule 2 CPC provides that new facts must
specifically be pleaded by the defendants in his pleadings to show that
the suit is not maintainable or that the transaction is either void or
voidable in point of law, and all such grounds of defence as, if not
raised, would be likely to take the opposite party by surprise, or would
raise issues of fact not arising out of the plaint, as, for instance, fraud,
limitation, release, payment, performance, or facts showing illegality.
17. Further Order 8 Rule 3 CPC speaks of a denial in the written
statement to be specific and further lays down that it shall not be
sufficient for a defendant in his written statement to deny generally the
grounds alleged by the plaintiff, but the defendant must deal
specifically with each allegation of fact of which he does not admit the
truth, except damages. In the aforesaid context the provisions of Order
6 Rule 15 CPC assumes importance, which deals with verification of
pleadings. For reference Order 6 Rule 15 CPC is quoted herein
below:-
"15. Verification of pleadings.
(1) Save as otherwise provided by any law for the time being
in force, every pleading shall be varied at the foot by the party
or by one of the parties pleading or by some other person
proved to the satisfaction of the Court to be acquainted with
the facts of the case.
(2) The person verifying shall specify, by reference to the
numbered paragraphs of the pleading, what he verifies of his
own knowledge and what he verifies upon information
received and believed to be true.
(3) The verification shall be signed by the person making it
and shall state the date on which and the place at which it was
signed.
(4) The person verifying the pleading shal also furnish an
affidavit in support of his pleadings."
18. Order 6 Rule 15(1) specifically provides that every pleading
shall be verified at the foot by the party or by one of the parties
pleading or by some other person proved to the satisfaction of the
Court to be acquainted with the facts of the case.
19. Thus, a party, who is specifically denying the allegations of
facts has to verify such pleadings and not only the said party is to
verify the pleadings but is also required to furnish an affidavit in
support of his pleadings.
20. Herein case, admittedly the defendant No.3 had not filed a
separate written statement but had adopted the written statement filed
by the defendant No.1(since deceased). Admittedly, defendant No.1
(since deceased) is father of the plaintiff and defendant No.3. It is not
the case that defendant No.3 had after the death of his father had been
arrayed as party to the suit as a legal representative. Defendant No.3
was a party defendant to the suit since the beginning against whom an
independent right has been claimed by the petitioner/plaintiff.
21. Since the very written statement filed by defendant No.1 has
not been verified by defendant No.3 nor any affidavit in support of
such pleadings has been submitted as are required under the provisions
of Order 6 Rule 15 CPC, in the light of judgment of Division Bench of
this Court in the matter of Babulal Agarwal (Supra), the same cannot
be said to be a written statement in the eyes of law so far as defendant
No.3 is concerned. Thus, the impugned order cannot be said to be
sustainable, is accordingly set aside.
22. So far as judgment cited by the counsel for the respondents
are concerned, this Court though is in full agreement with the view as
expressed therein that Order 6 and Order 7 of the Code are procedural
in nature and any omission in respect thereof will not render the
pleadings invalid and that such defect or omission will not only be
curable but will also date back to the presentation of the pleadings, but
finds that the aforesaid analogy has been laid down in the context
where at the time of presentation of the plaint or the written statement
some defects were left by the parties, which were held to be curable
and thus, was held that omission in respect to the defect would not
render the plaint or written statement redundant or invalid.
23. But herein case the defect is not that of the original pleader
but the defect is with regard to a person who has adopted the original
pleadings, therefore, the analogy which has been laid down by the
Apex Court as well as Delhi High Court cannot be come to the rescue
of respondents.
24. Accordingly, the present petition is hereby allowed and
disposed off.
Certified copy as per rules.
(MILIND RAMESH PHADKE)
JUDGE
neetu
NEETU Digitally signed by NEETU SHASHANK
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
SHASH
GWALIOR,
2.5.4.20=36b486bb0d381b950e435ec09
e066bc6b58cb947c1474b7dc349a1cf27
eaa2ce, postalCode=474001, st=Madhya
Pradesh,
ANK
serialNumber=E60A9BBFC39E0EE500EA
ADE1E0B3B8565CB3A7DC9F5CD048197
DF0FF3149AE58, cn=NEETU SHASHANK
Date: 2025.01.10 18:57:38 +05'30'
