Research › Search › Judgment

Madhya Pradesh High Court · body

2002 DIGILAW 484 (MP)

Asgar Ali v. lbrahim

2002-05-02

S.B.SAKRIKAR

body2002
JUDGMENT This order shall also govern the disposal of connected C.R. 1362/2001 filed against the same impugned order. Briefly stated the facts of the case are: - That the applicant/plaintiff has initially filed a suit only for the relief of declaration and injunction with regard to the disputed property but when the case was pending at the stage of evidence of the parties, the application filed by the applicant under O.6. R. 17 CPC seeking amendment in the plaint praying for the relief of possession of the disputed land, along with aforesaid application an application under O. 33. R. 1 CPC was also filed with a prayer that the applicant is an indigent person and not in position to pay the court-fees required on the plaint with regard to relief of possession of the disputed land as prayed by the amendment. Learned trial Court on consideration, rejected the application filed on behalf of the applicant seeking amendment in the plaint for adding the relief of possession of the disputed land. In view of the rejection of the amendment application, the trial Court also dismissed the application filed under O. 33. R. 1 CPC without recording any finding in connection with the indecency of the applicant. Aggrieved by the said two orders of the trial Court, respectively passed on the applications filed under O. 6. R. 17 and O. 33 R. 1 CPC, the applicant has filed this revision. I have considered rival submission of the L/C of the parties and perused the impugned order. Learned trial Court rejected the application filed under O.6 R. 17 CPC seeking amendment in the plaint mainly on the ground that the relief of possession though available to the plaintiff, was not claimed earlier; as such, he is not entitled to add the said relief by an amendment at the subsequent stage of the suit. In my considered opinion, the order of the trial Court rejecting application for amendment on the aforesaid grounds, is not in accordance with law applicable in case of amendments of the pleadings. Needless to say that the proposed amendment cannot be rejected solely on the ground that the application filed for the purpose is belated. In my considered opinion, the order of the trial Court rejecting application for amendment on the aforesaid grounds, is not in accordance with law applicable in case of amendments of the pleadings. Needless to say that the proposed amendment cannot be rejected solely on the ground that the application filed for the purpose is belated. In this case, the plaintiff prays for relief of possession on the ground that he was dispossessed from the disputed land in execution of the order passed by the Sub-Divisional Magistrate under S. 145 of the Criminal Procedure Code. The application was filed at the stage of evidence of the pat1ies; as such, it cannot be considered to be mala-fide or belated. In my considered opinion, the proposed amendment appears necessary for the disposal of the controversy existing between the parties with regard to the disputed land; as such, the impugned Order of the trial Co un dismissing application filed by the petitioner under O. 6. R. 17 of the CPC deserves to be set aside. Consequently, the revision petition filed against the aforesaid order of the trial Court is allowed. The impugned order of the trial Court rejecting application filed under O.6. R. 17 CPC is set aside allowing said application seeking amendment in the plaint. Proposed amendment be incorporated in the plaint within fourteen days from the receipt of this order by the trial Court. In view of the aforesaid order applicant plaintiff is permitted to incorporate relief of possession of the disputed land by way of amendment; as such, the trial Court is directed to make enquiry in accordance with law with regard to the indecency of the applicant to pay the Court fees required on the plaint after amendment. The order passed by the trial Court rejecting application filed under O. 33 R. 1 CPC is also set aside allowing the connected C.R. 1362/2001 arising out of the same impugned order. Both the revisions C.R. 1364/2001 and C.R. 1362/2001 stand finally disposed of as above. No order as to costs in both the cases. Copy of this order be placed in connected C.R. 1362/2001.