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2015 DIGILAW 1241 (MP)

Kamal Kumar Jain v. Virendra Kumar Jain Tadaiya

2015-12-12

ROHIT ARYA

body2015
ORDER 1. This writ petition by defendant under Article 227 of the Constitution of India is directed against the order dated 28.9.2015 in Civil Suit No.20-A/2015 by the trial Court. The amendment application under Order VI rule 17 CPC filed by plaintiff has been allowed. 2. Facts relevant and necessary for disposal of this writ petition are to the effect that a suit for eviction for bona fide need and arrears of rent under section 12(1) of the Madhya Pradesh Accommodation Control Act,1961 (hereinafter referred to as the Act of 1961) is pending consideration. After closure of evidence, plaintiff has filed the aforesaid application on the premise that the amendments proposed are with reference to the documents already exhibited during the course of cross-examination of the defendant. As such, no new facts are brought in and further neither changing the nature of the suit nor the same could be said to be prejudicial to the defendant. Defendant contested the application on the premise that the amendments sought are belated. No explanation is offered as to why such amendments were not incorporated in the suit or before commencement of the trial. Hence, for want of explanation, the same cannot be allowed in view of proviso to Order VI rule 17 CPC. However, trial Court relying upon the order of this Court in the case of Pushpa Arora v. Anita Arora and others [ 2012(1) MPLJ 710 ], has allowed the amendments though imposed cost with justification that the amendments sought are with reference to the documents already exhibited and confronted to defendant during the course of cross-examination. As such, no new facts are sought to be incorporated to change the nature of suit. In absence of any prejudice to the defendant, the amendment application was allowed. 3. Challenging the aforesaid order, learned counsel for the defendant/petitioner contends that Hon'ble Supreme Court and this Court in number of cases held that if amendment sought to be incorporated after commencement of trial, the requirement of proviso to Order VI rule 16 CPC must be fulfilled to the satisfaction of the trial Court, i.e., despite due diligence, the amendments could not have been brought on record before commencement of the trial, otherwise such amendments are barred by proviso to Order VI rule 17 CPC. Counsel refers to judgment of Hon'ble Supreme Court reported in 2009(3) MPLJ 122 (SC) Vidya Bai and others v. Padmalatha and another and this Court in 2014(2) MPLJ 464 Pratap and others v. Ganeshram and others, Writ Petition No.3342/2015 decided on 16.6.2015 Kushalpal Singh Jadon v. Dwarika Prasad Singhal and another and Writ Petition No.2191/2013 decided on 22.7.2014 Manoj Jain v. Smt. Suman Goyal to bolster his submission that the impugned order suffers from patent illegality and jurisdictional error. Hence, the same cannot be sustained in the eye of law. 4. Per contra, learned senior counsel for the plaintiff/respondent by referring to order of this Court in the case of Pushpa Arora (supra), justified the order impugned and prays for dismissal of the writ petition. 5. Heard. 6. Before dilating on legal proposition as regards scope of jurisdiction of the Court under Order VI rule 17 CPC and rigour of proviso appended thereto in the context of the aforementioned judgments by the Hon'ble Supreme Court and this Court, it is considered apposite first to consider what is the nature of the suit and secondly; the amendment sought in the instant case. 7. The suit is for eviction on the ground of bona fide need of son and for arrears of rent. In paragraph 1 of the plaint, the suit shop is described which is in possession of the defendant as tenant. The facts related to bona fide need of his third son have been pleaded in paragraphs 7, 8 and 9 of the plaint. 8. By application under Order VI rule 17 CPC, following amendment was sought to be incorporated in paragraph 1 of the plaint:- ßoknxzLr nqdku okyk edku oknh dks iap fu.kZ; fnukafdr 31-8-1978 fo mlds lkFk layXu ekufp= ds vuqlkj iw.kZ LokfeRo LoRoksa ds lkFk izkIr gqvk gSAÞ with the justification given in paragraph 2 of the applicationwherein it is stated about the aforesaid facts, i.e., panch nirnay dated 31.8.1978 and map showing the aforesaid position is already on record as exhibits P-16 and P-17 and the defendant's witnesses have been cross-examined in the context thereto. The proposed amendment in no way either change nature of suit or shall cause any prejudice to the defendant. 9. The proposed amendment in no way either change nature of suit or shall cause any prejudice to the defendant. 9. Therefore, it cannot be said that the facts sought to be brought on record either introduces new cause of action or change nature of the suit to the prejudice of the defendant and cannot be allowed if defendant is compensated in terms of money. 10. True, it is that rigour of proviso to Order VI rule 17 CPC has been held to be in the realm of jurisdictional facts and the Courts' before allows the amendment must satisfy itself about existence of such facts. The aforesaid principle of law laid down by the Hon'ble Supreme Court in the case of Vidya Bai and others (supra), holds the field and has been followed by this Court and Co-ordinate Benches in number of cases. If a party or opposite party seeks leave to amend its pleadings, which otherwise can be done at any stage of the proceedings in the suit but for proviso has to explain that the amendment sought to be incorporated could not have been pleaded at the time of filing of the suit or made part of pleadings prior to commencement of the trial despite, due diligence. Therefore, if facts are such which introduce new facts after commencement of the trial can only be allowed to be brought on record by way of amendment, if the aforesaid requirement of proviso is satisfied, otherwise not. But, where contents of documents in the context whereof amendments are sought are in the knowledge of the defendant and in his cross-examination, he has confronted with the documents marked as exhibits, in the opinion of this Court cannot be said to be new facts to the prejudice of the defendant. Moreover, such proposed amendment neither introduce new cause of action or brings any change in the nature of the suit. 11. In the case in hand, the suit is for eviction on the ground of bona fide need of son of the plaintiff and for arrears of rent as envisaged under section 12(1) of the Act of 1966. Suit property is tenanted property with the defendant. The documents based whereupon ownership is claimed and the description of the suit property as reflected from Exhibits P-16 and P-17 are already on record. Suit property is tenanted property with the defendant. The documents based whereupon ownership is claimed and the description of the suit property as reflected from Exhibits P-16 and P-17 are already on record. Therefore, the proposed amendment in no where can be said to be introduces a new case or new facts sought to be brought on record after commencement of the trial. Hence, the trial Court, in the opinion of this Court has not committed any illegality or jurisdictional error allowing the amendment with cost. Hence, writ petition is misconceived and dismissed.