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Madhya Pradesh High Court · body

2015 DIGILAW 385 (MP)

Jaywant v. Varsha

2015-04-06

S.R.WAGHMARE

body2015
ORDER 1. By this petition under article 227 of Constitution of India, the petitioner Jaywant has challenged the order dated 6.2.2014 passed by the 4th Civil Judge, Class II, Indore in Civil Suit No.29-A/14 allowing the application filed by the defendant under Order 6 rule 17. 2. Briefly stated the facts of the case are that the plaintiff had filed an application under Order 6 rule 17 of the CPC pleading that since there was to be a partition of the disputed house and the front portion should be allowed to the plaintiff independently and independent possession to be granted to the plaintiff. Trial Court, on considering the application allowed the application and hence the present petition by the defendant. 3. Counsel for the defendant-petitioner has vehemently urged the fact that considering the proviso to Order 6 rule 17 of the CPC, the amendment should not be allowed after the trial had commenced, unless the Court came to the conclusion that in spite due diligence the party could not have raised the matter before commencement of the trial. The counsel vehemently submitted that the application has been filed at the belated stage by the plaintiff when the issues were already framed, the plaintiff witnesses have been examined and the defendant-petitioner was leading his evidence. He urged that the issues were framed on 7.5.2010 and recording of the plaintiff evidence had started on 9.2.2011. The recording of evidence of defence witnesses had also started and cross-examination was being conducted when to fill up the lacuna, the present application has been filed. The application has been duly resisted. Besides, the counsel also stated by the said amendment, the entire nature of the suit would be changed and in the circumstances the said amendment should not be allowed. Counsel submitted that by the proposed amendment the nature of the suit will be changed since the very nature of the claim of the petitioner would be changed. Besides, the counsel also stated by the said amendment, the entire nature of the suit would be changed and in the circumstances the said amendment should not be allowed. Counsel submitted that by the proposed amendment the nature of the suit will be changed since the very nature of the claim of the petitioner would be changed. Moreover, the cause of action which accrued to the plaintiff at the time of filing of the suit should include whole of the claim and facts not so pleaded, then it must be deemed that the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of the Court and such right had already accrued to the petitioner-defendant and in pursuance to Order 2 rule 2 of the CPC, plaintiff has omitted to sue in respect of the particular portion of his claim it should be deemed that he has relinquished his right and now he cannot take action afterwards and sue in respect of the portion so omitted. Counsel submitted that the learned Judge of the trial Court has failed to consider the proviso of Order 6 rule 17 of the CPC. The words used are due diligence and the purpose of the proviso is to curtail delay and expedite the hearing of the case. Counsel place reliance on Chander Kanta Bansal v. Ranjinder Singh Anand [2008(4) MPLJ p.269]; Mankunwarbai v. Vinod Kumar [2010(4) MPLJ p.643], and Vidyabai and others v. Padmalatha and others [2009(3) MPLJ p.122], to state that the amendment should not be allowed after the trial has commenced and unless the Court comes to conclusion that in spite of due diligence the parties could not raise the matter before the commencement of the trial. Counsel submitted that he has already pointed out that the case was at the time of cross examination of defence witnesses when the defendant was leading his evidence and valuable right under Order 2 rule 2 had already accrued to the defendant-petitioner. Counsel submitted that he has already pointed out that the case was at the time of cross examination of defence witnesses when the defendant was leading his evidence and valuable right under Order 2 rule 2 had already accrued to the defendant-petitioner. Counsel for the petitioner also placed reliance on Virgo Industries (Engg.) Private Limited v. Venturetech Solutions Private Limited [2013(2) MPLJ p.22], to state that the suit was for partition; in the present case the defendant has made his independent claim by his over tact then the plaintiff could not have come with such a prayer at such a late stage to claim the front portion of the house. Also relying on Paraschand and others v. Rao Rajendra Singh and another [2014(3) MPLJ p.331], counsel submitted that the plaintiff was well aware of the facts mentioned in the amendment application; yet did not explain delay and reasons for not incorporating same fact in his plaint. Then such an amendment application ought not to have been allowed and the order was quashed by the High Court. Similarly, in the matter of Dashrath and another v. Rajubai and another [2015(1) MPLJ p.92], the Court found that when due diligence was not exercised by the party, no application can be allowed after the commencement of the trial. Counsel for the petitioner prayed that the impugned order be set aside and the trial Court be directed to continue the trial from the stage where it was stayed. 4. Counsel for the respondent, per contra, has vehemently urged the fact that undoubtedly an amendment application was filed at delayed stage, however, cause of action accrued to the plaintiff then on 16.12.2013 on the day of Dutta Jayanthi, the respondent categorically refused to partition the disputed part of the house and hence it was necessary to make specific averment in the plaint defining the claim of the plaintiff to the front portion of the house. However, placing reliance on Chander Kanta Bansal (supra), counsel stated that the apex Court has observed that trial Court are not rejecting the application for amendment but it was necessary to consider whether the nature of the suit thus would have been changed and in the present circumstances the suit was filed for partition and nothing adverse would be caused to the respondent. The plaintiff was only defining his claim to the suit property and nothing new was being put forth to adversely change or affect the defendant. Moreover, Rs.1,000/- as cost have already been imposed by trial Court and the trial Court has correctly held that the entire claim has to be considered at one go and that the amendment proposed was therefore bona fide. Counsel submitted that it was not proper for the petitioner-defendant to object at this stage. Counsel prayed that petition was without merit and the same be dismissed. 5. On considering the above submissions, I find that it is utmost important to consider Order 2 rule 2 of the CPC, proviso 2 Order 6 rule 17 of the CPC, to decide whether the amendment proposed by the plaintiff was bona fide apparently the suit was filed by the plaintiff in the year 2010 and when the issues were framed the plaintiff has completed recording of his evidence, the respondent has also started the recording of his evidence and cross examined several witnesses and now only for material particular the plaintiff has filed the said application to claim that in the portion the plaintiff is entitled to the front portion of the house and possession should be given independently to the plaintiff. 6. I find that the claim was already defined when the suit had been filed by the plaintiff in the year 2010. Merely saying that cause of action accrued on 16.12.2013 would be incorrect under the circumstances Order 2 rule 2 categorically states that however, suit shall include whole of the claim which plaintiff is entitled if the plaintiff omits to sue in respect of any portion of his claim then he shall not, after wards, sue in respect of that portion omitted. Undoubtedly he shall create an impediment to the actual physical portion of the house property as claimed by the respondent-plaintiff in the present petition. Undoubtedly he shall create an impediment to the actual physical portion of the house property as claimed by the respondent-plaintiff in the present petition. However, the fact that cannot be marginalized or blinked away is that due diligence could have always been exercised by the plaintiff as vehemently urged by the counsel for the petitioner and under the circumstances merely imposing of cost of Rs.1,000/- would not mitigate the circumstances and this Court is of the firm view that the delay has not been reasonably explained as to why the claim was not defined in the terms of the proposed amendment earlier at the time of filing of the suit and in this view of the matter, the petition is allowed. The impugned order is hereby set aside and only in the interest of justice; it is observed at the time of final decision of the suit, the trial Court shall keep in mind; the amendment proposed by the plaintiff. The trial Court is directed to proceed with the case as if amendment application has not been moved and amendment if any made be struck off. 7. The writ petition is allowed. Cost of Rs.1,500/- be paid to the counsel, if certified. ..........