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Madhya Pradesh High Court · body

2016 DIGILAW 1010 (MP)

Vishwakarma Bhagwan v. Laxminarayan

2016-11-08

ANAND PATHAK

body2016
ORDER 1. The present petition has been preferred by the petitioners, challenging the order dated 17.4.2012 (Annexure P-1) whereby the application preferred by the petitioners under Order VI rule 17 of CPC for amendment in the plaint has been rejected. 2. Learned counsel for the petitioners/plaintiffs submits that suit for permanent injunction and declaration was filed by the petitioners in the month of November, 2011 and in the month of April, 2012, before commencement of trial, amendment application was filed by the petitioners, therefore, the said application should have been allowed by the trial Court as the plaintiffs had every right to amend the plaint prior to commencement of trial. It is further submitted that since amendment application was moved before commencement of trial therefore, it cannot be termed to be for filling up of lacuna and change of nature of suit. 3. On the other hand, learned counsel for the respondent submits that if the amendment application of petitioners is allowed then it would amount to change of nature of controversy because through amendment petitioners are praying for deletion of the relief of declaration. It is further submitted that in order to render the preliminary issue so framed by the trial Court (in regard to maintainability of suit on 17.2.2012) as ineffective, the amendment application has been filed by the petitioners. In order to strengthen his contention, reliance has been placed over the decision of Hon'ble Supreme Court in the case of Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Regd.) v. Ramesh Chander and others [2011(1) JLJ 278= AIR 2011 SC 41 ]. Thus, prayed for dismissal of this petition. 4. Heard with consent. 5. Be that as it may, it is the choice of the plaintiffs to pursue the litigation with the relief as they deem fit. Defendant is always at liberty to file consequential amendment application and contest the claim so made by the plaintiffs in the plaint. Trial Court framed the issues considering the pleadings of the parties, therefore, sufficient opportunity would be available with the defendant to make the consequential amendments and to pray for framing of issues according to the point of dispute between the parties. 6. The question is whether petitioners can be deprived from amending the suit, prior to commencement of trial. Trial Court framed the issues considering the pleadings of the parties, therefore, sufficient opportunity would be available with the defendant to make the consequential amendments and to pray for framing of issues according to the point of dispute between the parties. 6. The question is whether petitioners can be deprived from amending the suit, prior to commencement of trial. The apex Court in the case of Vidhyabai and others v. Padmalatha and another [(2009)3 MPLJ (SC) 122= (2009)2 SCC 409 ], opined that the date on which the issues are framed is the date of first hearing. Code of Civil Procedure envisages taking of various steps at different stage of proceedings. Since, admittedly, on the date of filing of the application for amendment, trial had not commenced, therefore, no adversity/harm would have been caused to the other side in allowing the amendment application and the real question between the parties will be decided on merits. 7. The case relied upon by the respondent moves in different factual realm and facts of the said case cannot be borrowed here. 8. In view of the above discussions, since it is an admitted fact that the trial had not commenced on the date of filing of amendment application and it is the choice of the plaintiffs to pursue the litigation with the relief as they deem fit, the trial Court has erred in rejecting the amendment application preferred by the petitioners. 9. Resultantly, the rejection order dated 17.4.2012 (Annexure P-1) is hereby set aside. The amendment application under Order VI rule 17 read with section 151 CPC dated 3.4.2012 (Annexure P-4) is allowed subject to payment of costs of Rs.1,000/- to the defendant. 10. The Court below is directed to proceed from that stage in accordance with law treating the amendment as part of pleadings. Defendants would be at liberty to cause consequential amendments in accordance with law. 11. Petition stands disposed of. Rishikesh Bohre for petitioners; Anand Gupta for respondent.