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Madhya Pradesh High Court · body

2010 DIGILAW 111 (MP)

KAMLA BAI v. PREETI RAIZADA

2010-01-27

K.K.LAHOTI, S.C.SINHO

body2010
Judgment ( 1. ) This petition is directed against an order dated 1.10.2008, in Civil Suit No. 8-A/2006, by which petitioners application under Order 6 rule 17 C.P.C. was dismissed. The application was rejected by the trial Court on the ground that the plaintiff/respondent had closed her evidence and the petitioner/defendant had also examined her 3 witnesses. As the trial had commenced, petitioner/defendant cannot be allowed to amend the pleadings and the application was rejected. ( 2. ) Learned counsel appearing for petitioner assailed the order on the ground that during pendency of the suit on 28.8.2008, the plaintiff along with other co- owners let out the adjacent shop to M/s Reliance Fresh Limited by a registered lease-deed dated 8.5.2008, which was registered on 27.8.2008. The application seeking amendment was immediately filed on 15.9.2008. The petitioner herein moved an application with due diligence. The proposed amendment was based on subsequent event occurred after commencement of the trial, but the trial Court erred in rejecting the application filed by the petitioner. ( 3. ) Learned counsel appearing for plaintiff/respondent supported the order and submitted that in fact the plaintiff/respondent is not owner of the property which is subject matter of lease dated 8.5.2008. In this regard, a copy of the registered partition-deed dated 13.9.1991 is referred. It is stated that the premises let out to M/s Reliance Fresh Limited has not fallen into share of plaintiff Smt.Preeti Raizada. The aforesaid partition-deed has already come on record and the petitioner herein has cross-examined the plaintiff at length in this regard. The trial Court after considering the fact that plaintiff has denied that she had leased out her premises by the aforesaid lease in favour of M/s Reliance Fresh Limited, has rightly rejected the application. Respondent has also placed reliance to the Apex Courts judgments in Ajendraprasadji N.Pande Vs. Swami Keshavprakeshdasji N. (2006) 12 SCC 1 =2007 AIR SCW 513 and VidyaBai Vs. Padamalatha (2009) 2 SCC409=2009(1) MPWN 69 (SC) and submitted that in view of the settled law by the Apex Court that no amendment can be allowed after commencement of the trial, the trial Court has rightly rejected the application. ( 4. ) To appreciate the rival contentions of the parties, we perused the record, documents, lease-deed dated 8.5.2008 registered on 27.8.2008 and application AnnexureP/3 filed by the petitioner under Order 6 rule 17 CPC. ( 4. ) To appreciate the rival contentions of the parties, we perused the record, documents, lease-deed dated 8.5.2008 registered on 27.8.2008 and application AnnexureP/3 filed by the petitioner under Order 6 rule 17 CPC. From the perusal of the aforesaid, we find that the petitioner herein moved the application on 15.9.2008 before the trial Court seeking amendment in the written statement by inserting two paragraphs as 4-A and 4-B. By para 4-A, petitioner herein proposed an amendment that the plaintiff has leased out a shop having 3 portions to M/s Reliance Fresh Limited. M/s Reliance Fresh Limited has put two big shutters in the premises. Aforesaid lease was given just few days before filing of the application. Plaintiff is also receiving rent by cheque from Reliance Fresh Limited and is depositing it in her bank account of Central Bank of India, Imami Gate Branch, Bhopal. As shop has been let out by the plaintiff to M/s Reliance Fresh Limited during pendency of the suit, it shows that plaintiff is not having bona fide necessity of the disputed shop. ( 5. ) Another amendment which has been prayed by the petitioner herein is in respect of registration of the firm in the name of mother-in-law of the plaintiff namely Raj Dulari and it is stated that this firm is being managed by the plaintiff. Plaintiffs two sons are engaged in the profession of advocacy and they are not doing any business, so plaintiff is not having bona fide necessity of the suit accommodation. ( 6. ) This application was opposed by the plaintiff by filing a reply denying the allegations made by the petitioner herein in the application. The trial Court relying on the aforesaid judgments of the Supreme Court dismissed the application. ( 7. ) To appreciate the contention made by the petitioner, provision as contained in Order 6 rule 17 CPC may be looked into, which reads thus:- Rule 17. The trial Court relying on the aforesaid judgments of the Supreme Court dismissed the application. ( 7. ) To appreciate the contention made by the petitioner, provision as contained in Order 6 rule 17 CPC may be looked into, which reads thus:- Rule 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. (emphasis supplied) ( 8. ) The provisions as contained under Order 8 rule 9 CPC may be looked into which reads thus:- Rule 9. Subsequent pleadings- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same. ( 9. ) Order 6 rule 17CPC specifically 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. It is brought to our notice that plaintiff closed her evidence on 2.5.2007. Thereafter, petitioner/defendant commenced her evidence. It is stated at the Bar that till date, petitioner herein has examined 3 witnesses and the case is fixed for cross-examination of the remaining witnesses. On 15.9.2008, an application under Order 6 rule 17CPC was filed in which allegation were made in respect of the leasing of a portion of the house in which the suit accommodation is situated to M/s Reliance Fresh Limited. On 15.9.2008, an application under Order 6 rule 17CPC was filed in which allegation were made in respect of the leasing of a portion of the house in which the suit accommodation is situated to M/s Reliance Fresh Limited. Copy of deed is on record which reflects that though lease was made effective from 8.5.2008 but was registered on 27.8.2008 and within a period of 18 days, an application was filed before the trial Court seeking amendment in the written statement. From the perusal of the lease-deed AnnexureP/5, it is apparent that one among the executants of the deed is Smt.Priti Raizada, respondent herein. The lease further provides in para 1 that the lessors are the sole owners and absolutely seized and possessed of or otherwise well and sufficiently entitled to a immovable property. Meaning thereby that all the executants/lessors of the lease were owners of the property. Prima- facie lease was executed by the owners including plaintiff in favour of M/s Reliance Fresh Limited. Though the respondent submitted that because of insistence on the part of M/s Reliance Fresh Limited, respondent stood as an executant of the deed and in fact she was not having any right or title in the leased premises, but this aspect cannot be examined at this stage while considering the application for amendment. As subsequent events has occurred after commencement of the trial and the petitioner herein immediately moved an application seeking amendment in the written statement supported by document i.e. lease-deed, it cannot be said that the application was moved with no due diligence. If the application was filed within a period of 18 days of the registration of the document, petitioner herein was right in exercising her right under Order 6 rule 17CPC. The provision does not come in the way of the petitioner to amend the pleadings. Apart from this, the trial Court is having jurisdiction to permit the defendant for amendment of pleadings based on subsequent event, if filed in due diligence. The aforesaid pleadings can be filed with the leave of the Court upon such term as the Court thinks fit. As stated hereinabove, the application was filed immediately within a period of 18 days of the leasing out the premises to M/s Reliance Fresh Limited, the trial Court erred in rejecting the application filed by the petitioner seeking amendment in the written statement. ( 10. As stated hereinabove, the application was filed immediately within a period of 18 days of the leasing out the premises to M/s Reliance Fresh Limited, the trial Court erred in rejecting the application filed by the petitioner seeking amendment in the written statement. ( 10. ) The Apex Court in Ajendraprasadji N. Pande (supra) while considering the scope of order 6 rule 17 proviso, held that the application can be rejected where the matter was not raised earlier and due diligence was not there. But as stated hereinabove, the application was filed with due diligence immediately after execution of the deed. In Vidya Bai (supra) the Apex Court though held that after commencement of the trial, such amendment cannot be allowed. But in this case, the application was filed with due diligence and such application can be allowed. Aforesaid judgments are not applicable in the facts of the present case. ( 11. ) The Apex Court in Ram Kumar Barnwal Vs. Ram Lakhan (2007) 5SCC 660 considering the question of taking note of subsequent events held that the Court has power to take note of subsequent events and mould the relief accordingly, subject to the following conditions being satisfied; (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the Court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. The Apex Court further held that if the subsequent event is based on facts, the party relying on the subsequent event, which consists of facts not beyond the pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17CPC. Such subsequent event, the court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining the real questions in controversy between the parties. ( 12. Such subsequent event, the court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining the real questions in controversy between the parties. ( 12. ) In view of the aforesaid settled position of law in the aforesaid pronouncement, there is no iota of doubt that the aforesaid subsequent event ought to have been taken on record by the trial Court by permitting the petitioner herein to amend the pleadings. ( 13. ) Now another proposed amendment as prayed in para 4-B of the application may be looked into. This amendment is in respect of registration of the firm in the name of mother-in-law of the plaintiff namely Raj Dulari and in this regard certain averments have been prayed to be brought on record, but no reason has been assigned by the petitioner why this amendment could not be inserted before commencement of the trial. In absence of any explanation in this regard, the trial Court was justified in rejecting this part of the application in which no error is found. ( 14. ) In view of the aforesaid discussion, we find that the trial Court erred in exercising its jurisdiction under Order 6 Rule 17CPC in rejecting the entire application. The order is not sustainable under the law and is set aside in part. In the result, we allow this application in part and direct as under:- (i) The petitioners application under Section 6 rule 17CPC in so far as it relates to amendment of the written statement by inserting new para 4-A is hereby allowed. Rest application is hereby rejected. (ii) After allowing the amendment, the trial Court shall extend an opportunity to the plaintiff to amend the plaint, if required, then permit both the parties to lead evidence in respect of the proposed amendment. While considering the case on merits, the trial Court shall also consider the contention of the plaintiff that the said shop had not fallen into her share and because of insistence of the M/s Reliance Fresh Limited, she stood as an executant of the document AnnexureP/5. Considering facts of the case, there shall be no order as to costs. Petition partly allowed.