Madhya Pradesh High Court
Smt Kunti Devi(Now Died) W/O Late Shri ... vs Omprakash on 17 May, 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.4069 of 2022
SMT KUNTI DEVI(NOW DIED) W/O LATE SHRI UTTAM SINGH
AGE 68 YEARS THROUGH LRS SHOBARAM AND OTHERS
Versus
OMPRAKASH AND OTHERS
APPERANCE
Shri Mukesh Kumar Bhateley - Advocate for the petitioner.
Shri Manas Dubey - Advocate for the respondent No.2.
------------------------------------------------------------------------------------------
Reserved on : 27/01/2025
Delivered on : 17/5/2025
------------------------------------------------------------------------------------------
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:
---------------------------------------------------------------------------------------
ORDER
The present petition, under Article 226/227 of the Constitution of
India, is preferred by the petitioner against the order dated
10.12.2021passed by XV District Judge, Gwalior in Civil Suit No.65-A
of 2014, whereby an application (Annexure P/14, dated 06.12.2021)
under Order 6 Rule 17 CPC read with Section 151 of CPC preferred by
the petitioner/plaintiff for amendment in the plaint was rejected. The
petitioner is further aggrieved by the order dated 06.05.2022 whereby
an application (Anneuxre P/12, dated 15.03.2021) under Order 6 Rule
17 CPC read with Section 151 of CPC preferred by the
defendant/respondent No.3 - Renuka Dixit for amendment in the written
statement was allowed.
2. Facts in nutshell are that a suit was filed by the
petitioners/plaintiffs for declaration and permanent injunction in respect
of Survey No.935 ad-measuring 0.772 hectares situated at Village
Dhaneli, Patwari Halka No.65 Tehsil and District Gwalior. In respect of
the disputed number, the original plaintiff had executed power of
attorney in favour of defendant No.1 on 15.04.2009 and in said power
of attorney the survey number was mentioned as 935/1 ad-measuring
0.272 hectares but as soon as the original plaintiff came to know about
the fraud committed by the defendants No.1 and 2, the said power of
attorney was got cancelled by registered document dated 05.05.2009.
Despite cancellation of the power of attorney on 08.05.2009, the
defendant No.1 executed the sale deed in favor of the defendant No.3.
The defendants filed their written statement and denied the allegations
made therein. Learned Trial Court framed issues on 20.09.2015 and
thereafter framed additional issue on 09.09.2021. In the pending civil
suit, an application (Annexure P/12, dated 15.03.2021) under Order VI
Rule 17 read with Section 151 of CPC was filed by the
respondent/defendant No.3 seeking amendment in the written statement
as para 7-A. The said application was opposed by the original plaintiff
on the ground that the amendment would change the nature of written
statement and therefore said amendment cannot be allowed to be carried
out. Learned Trial Court after hearing on the application allowed it by
order dated 26.08.2021 (Annxure P/2) on the ground that the issue has
not been framed as the same is not hit by the provisions of Order 6 Rule
17 of CPC. Thereafter, the plaintiff had filed an application under Order
6 Rule 17 of CPC seeking amendment with regard to mention of Survey
No.935/1 in place of Survey No.935 which was dismissed by the
learned Trial Court vide order dated 10.12.2021. Thereafter, on
27.01.2022, the defendant No.3 again filed an application for correction
of survey number but the same was dismissed as withdrawn on
11.04.2022 and on the same day, the defendant No.3 again filed an
application under Order 6 Rule 17 of CPC seeking amendment of
Survey number and its area. On 22.04.2022, the petitioner also filed an
application under Order 6 Rule 17 of CPC for amendment with regard
to mention of Survey No.935/1 in place of Survey No.935. The said
application was opposed by the defendants. Learned Trial Court after
hearing on the said application rejected it vide impugned order dated
06.05.2022. Hence, the present petition.
3. Learned counsel for the petitioner/plaintiff submitted before this
Court 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 of the plaintiff 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, whereas
the amendment which has been sought by the respondent No.3 will
change the nature of the suit which causes prejudice to the plaintiff,
therefore, the Court below had erred in passing the impugned orders
herein.
5. 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 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 the power to allow or reject the
amendment is wide and can be exercised at any stage of proceedings 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, if the amendment sought is
necessary.
7. 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 or rejected 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.
8. Per contra, learned counsel for respondent has opposed the prayer
so made by counsel for the petitioner and had prayed for its dismissal
alleging that no illegality has been committed by the learned Trial Court
in rejecting the application of the plaintiff.
9. Heard counsel for the parties and perused the record.
10. 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 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."
11. 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.
12. True it is, that the provisions of Order 6 Rule 17 of CPC and the
proviso appended thereto conferred judicial discretion upon the trial
Court in the matter of consideration of the application for amendment
filed by either party in a suit. The trial Court is required to address upon
the application bearing in mind that the proposed amendment is: (i)
bona fide in nature; (ii) does not change nature of the suit; (iii) does not
cause prejudice to the other side; (iv) it is necessary and relevant to
address on the real issue involved in a suit between the parties.
13. The aforesaid considerations are in realm of justice, equity and
good conscience as the procedures have to be adhered to in the context
of the aforesaid principles. It is settled law that the procedural laws are
handmade laws to do complete justice between the parties.
14. 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
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.]"
15. 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
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 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.
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 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)"
16. 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. Herein case of
the plaintiff, none of the aforesaid eventualities exists and as the case is
at the stage of plaintiff's evidence, and in the case of the
respondent/defendant No.3, in the eventuality of effecting of nature of
the litigation which prejudices to the other party, in the considered view
of this Court, the Trial Court has committed error in rejecting the
application of the plaintiff for amendment and allowing the application
of the respondent No.3 by the impugned orders herein.
17. 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 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."
18. This Court, in light of the aforesaid discussion, finds that to evade
multiplicity of litigation, amendment application of the plaintiff should
have been allowed, as it is necessary and relevant to address on the real
issue involved in a suit between the parties and it would not change the
nature of suit so also 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. Whereas
amendment application of the respondent No.3 should not have been
allowed, as it would not change the nature of written statement,
therefore, the learned Trial Court has committed grave in error in
allowing the application of the respondent No.3. The impugned order
dated 10.12.2021 and 06.05.2022 being unsustainable are 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
petitioner/plaintiff to incorporate the proposed amendment in the plaint
and proceed with the matter accordingly.
19. 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
2022.
20. With the aforesaid observation and directions, the present petition
is allowed and disposed of.
(Milind Ramesh Phadke)
Judge
PAWAN
DN: c=IN, o=HIGH COURT OF MADHYA
pwn*
PRADESH BENCH GWALIOR, ou=HIGH COURT
OF MADHYA PRADESH BENCH GWALIOR,
2.5.4.20=b864d1ab4ace2215bfcf3ab301c34d6
31287f1b1cdd90b4a49f265f02d9d593f,
KUMAR
postalCode=474001, st=Madhya Pradesh,
serialNumber=61B9D129971D2EA4FD4455ED
49EA436EA65E26164BEEED89153191C56E98C
E21, cn=PAWAN KUMAR
Date: 2025.05.17 17:30:59 +05'30'
