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Madhya Pradesh High Court · body

2014 DIGILAW 75 (MP)

Brijesh Kumar Trivedi v. Lalibai

2014-01-15

SUJOY PAUL

body2014
ORDER 1. By invoking jurisdiction of this Court under Article 227 of the Constitution, the petitioner/defendant No.4 has filed this petition against the order dated 9.4.2013 passed in Case No.16A/2012 by Tenth Additional District Judge, Gwalior, whereby his application preferred under Order 6 Rule 17 CPC (Annexure P-4) was rejected by the Court below. 2. It is contended by learned counsel for the petitioner that a suit for declaration and permanent injunction was filed by the plaintiff in the year 2002. In the said suit, certain averments were made regarding a litigation which was decided by the trial Court on 22.12.2000. During the pendency of the present suit, the petitioner obtained the copies of relevant documents and judgments of earlier suit referred in para 4 of the complaint. After obtaining those documents, the petitioner filed amendment application to strengthen the pleadings, which will not cause any prejudice to the other side. It is contended that amendment was necessary for lawful adjudication of the matter and Court below has erred in rejecting the said application. It is further contended that proviso to Order 6 Rule 17 CPC, which was introduced in 2002 cannot be pressed into service for a suit which is filed prior to the amendment. 3. Prayer is opposed by Shri Anand V. Bharadwaj, learned counsel for the respondent No.1. However, Shri Bharadwaj has not disputed the fact that the civil suit in question is filed prior to insertion of proviso to Order 6 Rule 17 CPC in the Statute Book. 4. I have heard learned counsel for the parties and perused the record. 5. The Court below has rejected the amendment application for two reasons. Firstly, the Court below has rejected the application on the ground that the trial has already begun and as per proviso to Order 6 Rule 17 CPC, the petitioner was required to show “due diligence”. In nutshell, the Court below has relied on the proviso to Order 6 Rule 17 CPC, which came into being as per the Code of Civil Procedure (Amendment Act 2002) w.e.f. 1.7.2002. As noticed, there is no dispute between the parties that in the present case the suit was filed prior to insertion of proviso by Amendment Act 2002. Thus, the first question is whether the said proviso can be made applicable against the petitioner. 6. As noticed, there is no dispute between the parties that in the present case the suit was filed prior to insertion of proviso by Amendment Act 2002. Thus, the first question is whether the said proviso can be made applicable against the petitioner. 6. In the opinion of this Court, this point is no more res integra. In (2009) 12 SCC 689 (Sumesh Singh v. Phoolan Devi), the apex Court opined that amendment carried out in CPC by Amendment Act 2002 shall only apply in respect of suits which were filed after the amendment. Since suit has been filed prior to the amendment, the proviso was held to be inapplicable. In view of this, in my opinion, the Court below has erred in applying the principle analogous to and flowing from proviso to Order 6 Rule 17 CPC. 7. It is true that the plaintiff has disclosed about the earlier litigation and the petitioner has admittedly taken steps belatedly to obtain copies of the relevant documents/judgments etc. from the said case. 8. The second reason for rejecting the application was that the said amendment is not relevant. It is opined by the Court below that the reasons assigned in the amendment application are not relevant for the purpose of adjudication of the matter. 9. No doubt, there is a delay in filing the said application. However, the application shows that the petitioner intended to strengthen his pleading and clarify his stand. Thus, it cannot be said that the defence of the petitioner is irrelevant in nature. It is settled in law that by way of amendment the earlier pleadings can be clarified and strengthened. This will not cause any prejudice to the case. Merit of the amendment application can not be seen at this stage. In the opinion of this Court, the Court below has firstly erred in applying the proviso to Order 6 Rule 17 CPC to a suit, which was filed prior to the insertion of the proviso in CPC. Secondly, the Court below has erred in dealing with the merits of the amendment application. In the opinion of this Court, the amendment is necessary for lawful adjudication of the case. The prejudice to the plaintiff is only to the extent of delay because of belated filing of the amendment application. In that case the plaintiff can be compensated in terms of money. 10. In the opinion of this Court, the amendment is necessary for lawful adjudication of the case. The prejudice to the plaintiff is only to the extent of delay because of belated filing of the amendment application. In that case the plaintiff can be compensated in terms of money. 10. Considering the aforesaid, I deem it proper to set aside the order dated 9.4.2013 and allow the amendment application (Annexure P-4) subject to payment of Rs.3,500/- (Three Thousand Five Hundred) as costs to the plaintiff. If the petitioner pays this amount to the plaintiff, the Court below shall treat the amendment application as allowed and permit the petitioner to incorporate the same. The Court below shall proceed from that stage in accordance with law. 11. Petition is allowed to the extent indicated above.