Madhya Pradesh High Court
Ramshankar vs Vancharam on 18 March, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 18 th OF MARCH, 2025
MISC. PETITION No. 2580 of 2019
RAMSHANKAR AND OTHERS
Versus
VANCHARAM AND OTHERS
Appearance:
Shri Sarvesh Kumar Sharma - Advocate for the petitioners.
Shri Ravi Shankar Gupta - Advocate for respondent No.1.
ORDER
The present petition under Article 227 of the Constitution of India is
preferred against the order dated 02.05.2019 passed by the First Civil Judge
Class-I to the Court of Second Additional Civil Judge, Bhind in Civil Suit No.48-
A of 2016 (old Civil Suit No.49-A of 2015), whereby an application under Order 6
Rule 17 CPC read with Section 151 of CPC for amendment in the plaint was
rejected and while rejecting the application, the learned Trial Court had went on to
decide the merits of the amendment which was impermissible. Assailing the
aforesaid order, the present petition has been filed.
2. Facts in nutshell are that a suit was filed by the petitioner/plaintiff with
regard to declaration and permanent injunction as well as declaring the sale deeds
dated 01.07.1968 and 12.08.1968 to be null and void by alleging that the the suit
property was an ancestral property and name of his ancestors were recorded in the
revenue records. Grandfather of the petitioners i.e. Pyarelal was having three sons,
namely, Asharam, Jeewan Ram and Vidhyaram. Since Asharam, Jeewan Ram
were having no issues, therefore, the present petitioners being legal heirs of
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Vidhyram acquired the title of suit property after the death of his brothers. In the
pending civil suit, application under Order VI Rule 17 read with Section 151 of
CPC was filed on 19.02.2019 seeking amendment in the plaint to the effect that
that the possession of the land in question be also delivered to the plaintiff. The
said application was opposed by the defendants (respondents herein) on the ground
that the amendment would change the nature of suit and therefore said amendment
cannot be allowed to the carried out. Opposition was also made on the fulcrum that
the plaintiff 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 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 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 necessary
for lawful adjudication of the matter, therefore, rejection of the application for
amendment is bad in law, as by the amendment, the nature of suit will not change
and no new cause of action would arise, if the amendment application is allowed
and also since the trial is at a preliminary stage that of plaintiff's evidence,
therefore, the Court below had erred in rejecting the application.
5. It was further submitted that at the time of deciding the application under
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Order 6 Rule 17 CPC, the trial Court cannot go into the question of merits of
amendment and it was 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 .
6. 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.
7. It was further submitted that the power to allow the amendment 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.
8. 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.
9 . Per contra , counsel for the respondent No.1 has opposed the prayer so
made by counsel for the petitioner and had prayed for its dismissal alleging that no
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illegality has been committed by the learned Trial Court in passing the impugned
order dated 02.05.2019.
10. Heard counsel for the parties and perused the record.
11. According to the provisons 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 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 the conclusion that in
spite of due diligence, the party could not have raised the matter before the
commencement of trial.
12. 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.
13. 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
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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."
14. 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.
15. 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 plaintiffs/petitioners, under misconception could not be claimed,
therefore, is being sought to be added additionally by way of amendment
application. The impugned order dated 02.05.2019 being unsustainable, is hereby
set aside. The application filed by the plaintiff under Order VI Rule 17 of CPC is
allowed and learned Trial Court is directed to allow the petitioners to incorporate
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the proposed amendment in the plaint and proceed with the matter accordingly.
16. 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 possible in accordance with
law, as the same is pending since the year 2015-2016.
17. With the aforesaid observation and directions, the present petition is
allowed and disposed of.
(MILIND RAMESH PHADKE)
JUDGE
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