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Madhya Pradesh High Court · body

2016 DIGILAW 1009 (MP)

SHUSHIL KUMAR v. OMPRAKASH

2016-11-08

VIVEK RUSIA

body2016
ORDER : VIVEK RUSIA, J. 1. The present petition has been filed by the petitioner being aggrieved by the order dated 12.08.2016 passed by IVth Civil Judge, Class-I, Neemuch by which application seeking amendment filed under Order 6, Rule 17 CPC in written statement has been rejected. 2. Respondents No.1 & 2 being plaintiffs filed a suit for eviction against the petitioner. According to the plaintiffs father of the plaintiffs has purchased house No.338 Tilak Marg, Neemuch vide sale deed dated 21.5.1974. Much prior to the said purchase Shri Badrilalji, father of petitioner/defendants were inducted as tenants and after his death defendant has inherited the tenancy. It is alleged that defendant has started commercial activity by opening an office of advocate, therefore, the plaintiff is entitled for eviction. 3. The written statement was filed by the defendant/petitioner in which title of the plaintiff was denied. On the basis of the pleading eleven issues were framed. Thereafter issue No.12 & 13 were framed as additional issue regarding landlord tenancy relationship. 4. On the basis of the denial of title in the written statement plaintiff filed an application for amendment in the plaint raising additional ground of section 12(1)(c) i.e. denial of title. Such pleading was allowed and thereafter additional issue No.17(a) and 17(b) have been framed. 5. That after framing such additional issues defendant filed an application under Order 6, Rule 17 of CPC stating that the defendant never wanted to challenge the landlord status of plaintiff, therefore, he is praying for amendment in the written statement for deleting the plea of denial of title which gave a wrong impression to the plaintiff that he is challenging the title. The plaintiff opposed the said application on the ground that such a pleading cannot be withdrawn by the written statement which is affecting the right of plaintiff to claim eviction on the ground of 12(1)(c). Vide impugned order dated 12.8.2016 trial Court has rejected the application. Hence, the present writ petition under Article 227 of the Constitution of India. 6. Shri Sameer Athawale, learned counsel for the petitioner argued that parties can withdraw their pleading at any stage. But the principle which is applicable for plaintiff for withdrawal of the pleading are different and the defendant as he may take various inconsistent pleas and he is permitted to withdraw the same at any time. 6. Shri Sameer Athawale, learned counsel for the petitioner argued that parties can withdraw their pleading at any stage. But the principle which is applicable for plaintiff for withdrawal of the pleading are different and the defendant as he may take various inconsistent pleas and he is permitted to withdraw the same at any time. In support of his contention he has placed reliance over the judgment of the Apex Court in the case of Baldev Singh and others v. Manohar Singh and another reported in (2006) 6 SCC 498 . He has further submitted that defendant had no intention to challenge the title of the plaintiff but from the pleading if wrong impression was given to the plaintiff that the defendant has denied the title of plaintiff, therefore, the defendant ought to have been permitted to delete the said pleading from the written statement by the trial Court. 7. In reply to the above argument Shri Satish Jain on behalf of respondents argued in support of the order of the trial Court and submitted that not only the defendant is denying the title of plaintiff but he is projecting himself as owner of the suit property. He has drawn attention to the pleading in para-6 of the written statement in which it is stated that father of the plaintiff has surrendered the rights and title to the father of the defendant, therefore, in view of the said pleading the defendant cannot be permitted to amend the written statement. In support of his contention he has placed reliance over the judgment of the Apex Court in the case of Abdul Razak v. Mangesh Rajaram Wagle reported in (2010) 2 SCC 432 on the point that in the writ petition the Court was required to consider whether there was a substantial failure of justice by the trial Court refusing to strike off the pleading in the written statement. He has further placed reliance over the judgment in the case of S. Malla Reddy v. Future Builders Cooperative Housing Society and others reported in (2013) 9 SCC 349 on the point that admission made by the defendant in favour of the plaintiff cannot be permitted to withdraw by way of application for striking out pleadings. He has further placed reliance over the judgment in the case of S. Malla Reddy v. Future Builders Cooperative Housing Society and others reported in (2013) 9 SCC 349 on the point that admission made by the defendant in favour of the plaintiff cannot be permitted to withdraw by way of application for striking out pleadings. He further submits that by making pleading in the written statement plaintiff has got a ground of eviction under section 12(1)(c) to get eviction from the defendant and if the impugned application is allowed the plaintiff would loose important ground of eviction. 8. That provision of Order 6, Rule 16 and Order 6, Rule 17 CPC both deal with the amendment and striking out the pleading which party to desire to make in his pleading. They may ask the Court for striking out the pleading on the ground that such pleadings are unnecessary, frivolous and vexatious. The Court is empowered to strike out any pleading at any stage of the trial and the Court is also empowered to allow either party to alter or allow his own pleading but in the present case the issue is whether defendants can be permitted to delete their pleadings if that has given a ground to the plaintiff to get a relief. The defendant in written statement has specifically stated in para-6 that father of the plaintiff has virtually gifted the house in dispute to his father and on that point issue No.14 has been framed by the trial Court. In para-13 the defendant has further pleaded that there is no relationship of landlord and tenant between them and humbly requested that plaintiff to establish his title. The defendant in specific word has denied the title of the plaintiff and on the basis of the said pleading the trial Court has framed the issue of section 12(1)(c). 9. Now by way of amendment application defendant prayed for withdrawal of all the pleading about the denial of title on the ground that he had no intention to challenge the title but on the basis of the said pleading plaintiff has believed that the defendant is denying the title. 10. 9. Now by way of amendment application defendant prayed for withdrawal of all the pleading about the denial of title on the ground that he had no intention to challenge the title but on the basis of the said pleading plaintiff has believed that the defendant is denying the title. 10. In the case of Heeralal v. Kalyan Mal and others reported in (1998) 1 SCC 278 the Apex Court has held that once the written statement contains a statement in favour of plaintiff the amendment of such admission of defendant cannot be allowed to be withdrawn and such withdrawal would amount to total displacing the case of the petitioner. In another case in B.K. Narayana Pillai v. Parameswaran Pillai and another (2000) 1 SCC 712 it was held that defendant has a right to take alternative plea in defence by way of amendment but the proposed amendment should not result injustice to the other side. The aforesaid two judgments have been followed in the case of S.Malla Reddy (supra). 11. That in the present case the trial has commenced and the issues have been framed and under proviso to Order 6, Rule 17 there is a specific bar for amendment of pleading as held by the Apex Court in the case of Vidyabai & ors. v. Padmalatha & another reported in AIR 2009 SC 1433 . In the case of J. Samuel and others v. Gattu Mahesh and others reported in 2012 (3) MPLJ 37 the Supreme Court has held that Court's discretion to grant permission for a party to amend pleading lies on two conditions. Firstly no injustice must be done to other side and secondly amendment must be necessary for the purpose of determining the real question in controversy between the parties. It is further held that there should be due diligence while moving such an application for amendment. The object of amendment to Order 6, Rule 17 is to install filing of application for amendment of pleading subsequent to the commencement of trial to suppress and delay in filing application. In the present case trial Court has specifically held that all facts of the case were in the knowledge of the defendant from the very beginning and there is no discovery of new facts which are required to be pleaded by way of amendment. 12. In the present case trial Court has specifically held that all facts of the case were in the knowledge of the defendant from the very beginning and there is no discovery of new facts which are required to be pleaded by way of amendment. 12. That the defendant with open eye with full knowledge has made a pleading in the written statement about the status of plaintiff and on the basis of these pleading the plaintiff raised the additional ground for eviction by way of amendment in his plaint. The said application for amendment was allowed by the Court and thereafter additional issues were framed on the point of denial of title. Both the action has not been challenged by the defendant at the relevant point of time. That in order to to nullify the ground of section 12(1)(c) and the additional issue defendant purposely filed the application for amendment for striking out the pleading which is nothing but abuse of process of Court. The trial Court has not committed any error while rejecting the application. 13. Even otherwise, the scope of Article 227 of Constitution of India in exercising jurisdiction is very limited in respect of interfering with the order of subordinate Court. Hon'ble Supreme Court in the case of Shalini Shyam Shetty and another v. Rajendra Shankar Patil reported in (2010) 8 SCC 329 , wherein it has held that: "The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Interference is made to ensure that Courts below act within the bounds of their authority. Another view is possible, is not a ground for interference. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner." 14. In view of the aforesaid observations, I do not find any illegality or error committed by the trial Court. Accordingly, present writ petition is dismissed.