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2014 DIGILAW 380 (MP)

Sonu Dubey v. Virendra Kumar Rai

2014-04-03

ALOK ARADHE

body2014
JUDGMENT : Shri Ashish Shroti, learned counsel for the petitioners. Shri S. A. Shah, learned counsel for respondent No. 1. Shri Akhilesh Jain, learned counsel for respondents No. 2 to 5. With consent of the parties, the matter is heard finally. In this writ petition under Article 227 of the Constitution of India, the petitioners have challenged the validity of the order dated 17-7-2013 passed by the trial Court by which application for amendment of the written statement filed by respondents No. 2 to 5, has been allowed. 2. Facts giving rise to filing of the writ petition briefly stated are that the petitioner/plaintiff filed the suit inter alia on the ground that one Vishnu Prasad was the owner of certain lands. Aforesaid Vishnu Prasad had two wives. The plaintiffs are the children from the second wife whereas, defendant No. 2 is the first wife of late Vishnu Prasad and defendants No. 3 to 5 are children from the first wife. After the death of Vishnu Prasad, the property held by him devolved on plaintiffs as well as defendants No. 2 to 5. However, defendants No. 2 to 5 unilaterally sold the suit property to defendant No. 1. Thereupon, the plaintiffs filed the suit seeking the relief of declaration and permanent injunction on or about 9-11-2004. 3. In the written statement, defendants No. 2 to 5 inter alia denied the claim of the plaintiffs. It was pleaded that plaintiffs are not related in any manner with the deceased Vishnu Prasad. The plaintiffs adduced their evidence in the year 2009. On 29-1-2009, the case was fixed for recording the defendants' evidence. The defendants No. 2 to 5 filed an application after a period of approximately 4-1/2 years on or about 18-6-2013 seeking amendment of the written statement. By way of proposed amendment, defendants No. 2 to 5 wanted to incorporate the plea that late Vishnu Prasad had executed "Parvarishnama" in favour of defendant No. 2 for her maintenance. 4. The trial Court by the impugned order dated 17-7-2013 allowed the application for amendment and held that plaintiffs can be compensated in terms of cost. 5. Learned counsel for the petitioners submitted that the trial Court ought to have appreciated that the proposed amendment was highly belated and no explanation was offered for the delay and the proposed amendment if allowed, would change the nature of the suit. 5. Learned counsel for the petitioners submitted that the trial Court ought to have appreciated that the proposed amendment was highly belated and no explanation was offered for the delay and the proposed amendment if allowed, would change the nature of the suit. In support of his submissions, learned counsel for the petitioners has placed reliance on decisions of Supreme Court in Mashyak Grih Nirman Sahakari Sanstha Maryadit vs. Usman Habib Dhuka and others, (2013) SCC 485 and Vidyabai and others vs. Padmalatha and another, 2009(3) MPLJ (S.C.) 122 = (2009) 2 SCC 409 . 6. On the other hand, learned counsel for respondents No. 2 to 5 has submitted that defendants No. 2 to 5 were not in possession of the documents and the proposed amendment is necessary for a fair and complete adjudication of the controversy involved in the suit. It is further submitted that since the plaintiffs have accepted the amount of cost, therefore, they cannot be permitted to challenge the order passed by the trial Court. In support of his submissions, learned counsel for respondents No. 2 to 5 has placed reliance on decisions reported in Rajesh Kumar Aggarwal and others vs. K. K. Modi and others, 2006(3) MPLJ 215, Mangilal, s/o. Ratanlal Patidar and others vs. Dambarlal s/o. Ratanlal Patidar and another, 2007(4) MPLJ 200 , Neeta Narang vs. Beena Valicha, 2011(1) MPLJ 239 , Radheshyam Palod etc., vs. Smt. Shantidevi and others etc., AIR 1994 NOC 191 and Devinder Singh vs. Jaspal Kaur, AIR 1999 Punjab and Haryana 229. 7. I have considered the submissions made by learned counsel for the parties. In Gautam Sarup vs. Leela Jetly and others, 2008(4) MPLJ (S.C.) 113 = (2008) 7 SCC 85 , it has been held that while dealing with the prayer for amendment in the written statement, the discretion has to be exercised judicially. In Chander Kanta Bansal vs. Rajinder Singh Anand, 2008(4) MPLJ (S.C.) 269 = (2008) 5 SCC 117 , the Supreme Court has considered the expression "due diligence", used by the Legislature in proviso to Order 6, Rule 17 of the Code of Civil Procedure and has held that due diligence means such diligence as a prudent man would exercise in conduct of his own affairs. In Rajkumar Gurawara (dead) through LRs. In Rajkumar Gurawara (dead) through LRs. vs. S. K. Sarwagi and Company Private Limited and another, (2008) 14 SCC 364, it has been held that since lesser degree of prejudice is caused in pre-trial amendments, therefore, the same should be allowed more liberally. If in case of post-trial amendments, greater degree of prejudice is caused and, therefore, the Court should be satisfied that the application for amendment would not be made at earlier point of time despite due diligence. 8. In the backdrop of aforesaid well settled legal position, facts of the case may be seen. In the instant case, the suit was filed on 9-11-2004. The plaintiffs closed their evidence in January, 2009. Thereafter, the case was fixed for defendants' evidence for the first time on 29-1-2009. The defendants No. 2 to 5 did not adduce evidence for a period of approximately four years and thereafter, they filed an application under Order 6, Rule 17 of the Code of Civil Procedure on 18-6-2013 by which amendment in the written statement was sought. In the application, it has only been stated that the document was discovered by them in the month of June, 2013. However, the date of discovery of the documents has not been mentioned in the application. Thus, in the considered opinion of this Court, the defendants have failed to show that notwithstanding exercise of due diligence, they could not file the application for amendment before the trial commenced in the suit. In Abdul Rahmankhan and another vs. Failkus Mohamadkhan and others, AIR 1934 Nagpur 163, it has been held that if the party accepts the cost expressly reserving his right to challenge the order then in such a case, the party can challenge the order. From perusal of the impugned order, it is evident that the petitioner has accepted the cost by reserving his right to challenge the order in an appropriate proceeding. Therefore, the contention of learned counsel for respondents No. 2 to 5 that since the petitioners have accepted the amount of cost, therefore, they cannot be permitted to challenge the impugned order, cannot be accepted. 9. In view of preceding analysis, the order passed by the trial Court suffers from the error apparent on the face of the record as well as jurisdictional infirmity, therefore, the same cannot be sustained in the eye of law. Accordingly, the same is quashed. 9. In view of preceding analysis, the order passed by the trial Court suffers from the error apparent on the face of the record as well as jurisdictional infirmity, therefore, the same cannot be sustained in the eye of law. Accordingly, the same is quashed. In the result, the writ petition is allowed. C.C. as per rules. Petition allowed.