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2015 DIGILAW 1062 (MP)

Rameshwar Dayal Sharma v. Om Prakash

2015-10-06

SUJOY PAUL

body2015
ORDER 1. Petitioners/defendants are aggrieved by order dated 8.10.2014 (Annexure P-1), whereby the Court below has allowed the amendment application of the plaintiff/respondent No.1 after commencement of trial. 2. Shri S.N.Seth, learned counsel for the petitioners assailed the impugned order on the ground that admittedly the amendment application was filed at the stage when suit was fixed for final hearing. By way of amendment, the plaintiff wanted to bring certain facts, which were well within his knowledge earlier. The amendment was barred by time. He placed reliance on the averments of amendment application and reply filed by him. It is urged that the amendment application was filed after 16 years and, therefore, said application should not have been allowed. Shri Seth placed reliance on AIR 2009 SC 1177 (South Konkan Distilleries and another v. Prabhkar Gajanan Naik and others) to contend that the Court below erroneously relied on this judgment. By reading para 15 of said judgment, Shri Seth urged that in the case before Supreme Court, there was no dispute on the question of limitation whereas in the present case there exists a dispute and objection. Hence, such barred by time application should not have been allowed. He also relied on 2013(1) MPLJ 325 (Abdul Wasid (dead) through LRs Hanifa Begum and others v. Munni Bai and others) to contend that barred by time relief cannot be granted. 3. Per Contra, Shri Abhishek Bhadoriya, learned counsel for the respondents No.1 to 4/plaintiffs supported the order and relied on certain judgments. He submits that the suit was filed before 2002. Hence, the proviso to Order 6 rule 17 CPC has no application in such suit. 4. No other point is pressed by the parties. 5. I have heard the parties and perused the record. 6. This is trite law that proviso to Order 6 rule 17 CPC will not apply on suits which were filed prior to insertion of said proviso. The judgments of apex Court in this regard were relied upon by trial Court in the impugned order. Thus, to this extent there is no illegality or infirmity in the impugned order. 7. In response to application preferred by plaintiff under Order 6 rule 17 CPC, the defendants/petitioners urged that the application for amendment is based on a report of 2003, which is about 11 years old. After 11 years, amendment application cannot be entertained. Thus, to this extent there is no illegality or infirmity in the impugned order. 7. In response to application preferred by plaintiff under Order 6 rule 17 CPC, the defendants/petitioners urged that the application for amendment is based on a report of 2003, which is about 11 years old. After 11 years, amendment application cannot be entertained. The objection about limitation was taken. Article 65 of the Limitation Act reads as under :- Description of suit Period of limitation Time from which period begins to run For possession of immovable property or any interest therein based on title Twelve years When the possession of the defendant becomes adverse to the plaintiff. A plain reading of relevant Schedule shows that the time from which period needs to be counted is when the possession of the defendant becomes adverse to the plaintiff. Thus, this is essentially a mixed question of fact and law. 8. The apex Court in (1998)1 SCC 614 (Indira v. Arumugam and another), opined that when suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence, unless the defendant proves adverse possession for the prescribed period, the plaintiff cannot be non-suited. Thus, it shows that it is a matter of pleading and evidence both. This Court in 2014 RN 428 (Munni Devi (Smt.) v. Shanti Kumar and others) remitted the matter back to the trial Court by giving opportunity to the plaintiff to amend the plaint. In 2012 AIR SCW 5419 (Abdul Rehman v. Mohd. Ruldu), the apex Court opined that amendment can be filed at belated stage, if it is necessary for lawful adjudication of the matter and avoids multiplicity of litigation. The judgment of this Court in Abdul Wasid (supra), is of no assistance to the petitioners at this stage because the said judgment is passed in a second appeal and does not deal with the aspect of maintainability of amendment application etc. 9. The Court below has passed a detailed and reasoned order. The Court below opined that amendment is necessary for lawful adjudication of controversy between the parties. This will avoid multiplicity of litigation. 10. As per the test laid down by Supreme Court, in my view, the Court below has considered relevant factors to decide the necessity of amendment. 9. The Court below has passed a detailed and reasoned order. The Court below opined that amendment is necessary for lawful adjudication of controversy between the parties. This will avoid multiplicity of litigation. 10. As per the test laid down by Supreme Court, in my view, the Court below has considered relevant factors to decide the necessity of amendment. The impugned order is neither without jurisdiction nor suffers from any procedural impropriety or perversity. This Court in exercise of power under Article 227 of the Constitution is not obliged to act as an appellate authority. It should also not act as “bull in a china shop”. Interference can be made sparingly and not on a drop of hat. Interference cannot be made even to rectify minor, legal or factual errors. See, Shalini Shyam Shetty and another v. Rajendra Shankar Patil, reported in (2010)8 SCC 329 . 11. In the present case, the Court below has taken a plausible view which does not warrant interference. Petition fails and is hereby dismissed. MLA ..................