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Madhya Pradesh High Court · body

2016 DIGILAW 34 (MP)

Munni Bai (Smt. ) v. Ram Kunwar

2016-01-12

ROHIT ARYA

body2016
ORDER 1. This writ petition under Article 227 of the Constitution of India is directed against the order dated 9.3.2015 passed by the trial Court. Defendant No.3's application under Order VI rule 17 CPC has been allowed by the aforesaid order. 2. Facts relevant and necessary for disposal of this writ petition are to the following effect : Plaintiff has filed a suit for possession, mense profit and permanent injunction inter alia contending that the suit house is of her ownership. Her husband late Chimmanlal Sharma during his lifetime had filed a suit (Civil Suit No.174-A/1991) against late Babulal, husband of defendant No.1 and father of defendants No.2 to 6, for declaration. The same was decreed on 27.1.1995, whereunder the suit property was declared to be of the ownership of late Chimmanlal Sharma and late Babulal was held to be licensee of premises. The said order has attained finality. As the relief of possession was not sought, therefore, the instant suit has been filed. 3. It has been contended in the suit that after death of late Babulal on 28.4.2003 though the licence had come to an end, but respondents-defendants continued to be in possession thereof and since they resisted delivery of possession and took recourse to criminal activity, hence, the instant suit for recovery of possession has been filed. 4. Defendants No.1, 3 and 4 filed separate written-statement on 23.8.2005, 8.8.2005 and 17.3.2006. Defendants denied the plaint averments mainly on the premise that the suit property is of the ownership of plaintiff, instead plleaded that Babulal was the owner of the suit property and after his death defendants hold the title thereof. 5. On the aforesaid pleadings, trial Court framed issues on 4.10.2005 and additional issues are also framed on 17.3.2006. Plaintiff completed evidence on 3.2.2006. Subsequently, Santosh Kumar was examined and re-examined on 23.4.2014. DW1 was examined on 2.7.2014, DW2 was examined on 7.10.2014 and subsequently, defendant No.3 Ramgoopal Jha filed an affidavit on 9.1.2015 as a witness of defendant No.4. He also filed an application under Order VIII rule 1 CPC. The same was dismissed by the trial Court on 23.1.2015. Thereafter, defendant No.3 filed an application under Order VI rule 17 CPC on 27.2.2015. Reply to the application was filed. The application has been allowed by the impugned order dated 9.3.2015. 6. He also filed an application under Order VIII rule 1 CPC. The same was dismissed by the trial Court on 23.1.2015. Thereafter, defendant No.3 filed an application under Order VI rule 17 CPC on 27.2.2015. Reply to the application was filed. The application has been allowed by the impugned order dated 9.3.2015. 6. By way of amendment defendant No.3 sought to incorporate the fact that Nathiyabai; the only daughter of Tejram, during her lifetime had propounded a Will on 28.2.1986 in favour of defendant bequeathing the suit property. The occasion for amending the written-statement has arisen for the reason that the plaintiff during the course of her evidence has stated that the suit property had devolved upon her husband after death of Tejram; the original owner of the suit property since he had adopted her husband late Chimmanlal Sharma and further amendment that Tejram had not adopted late Chimmanlal Sharma. Hence, according to the defendant, aforesaid proposed amendment was consequential and, therefore, the trial Court has rightly allowed the amendment. 7. In reply, plaintiff opposed the application on the premise that the amendment is sought to be incorporated after trial has commenced, plaintiff has closed her evidence and defendants witnesses have also closed the evidence. Defendant No.3 was ex parte. Amendment sought to be incorporated are not such amendment which despite due diligence could not have been incorporated in the written-statement, hence, by force of proviso to Order VI rule 17 CPC the aforesaid amendment cannot be allowed, as the title to the suit property is sought to be claimed on the basis of alleged Will dated 28.2.1986. Thee is no explanation offered in the application of justification for having not incorporated the said fact while filing the written-statement, which was filed in the year 2005, therefore, after more than 10 years the amendment based ont he alleged Will is said to be incorporated. 8. The trial Court by the impugned order has allowed the amendment with the justification on the premise that the amendment is bona fide and is proposed in rebuttal. Merely because delay is caused in filing the application for amendment, the prayer for amendment cannot be refused. Therefore, defendant No.3 was directed to amend the written-statement. 9. 8. The trial Court by the impugned order has allowed the amendment with the justification on the premise that the amendment is bona fide and is proposed in rebuttal. Merely because delay is caused in filing the application for amendment, the prayer for amendment cannot be refused. Therefore, defendant No.3 was directed to amend the written-statement. 9. Assailing the aforesaid order, learned senior counsel contends that the trial Court has acted in excess of his authority and jurisdiction and contrary to settled principles of law in the matter of scope of jurisdiction of the Court under Order VI rule 17 CPC after incorporation of proviso thereto by way of amendment in the CPC w.e.f. 1.7.2002. Learned counsel refers to the judgment of the Supreme Court in the case of Vidyabai and others v. Padmalatha and another [2009(3) MPLJ 122], to bolster his submission that amendment with reference to the alleged Will of late Nathiyabai dated 28.2.1986 to claim title over the suit property filed on 27.2.2015, though the written-statement was filed in the year 2005, shows that after fabrication of the documents such maneuvered plea is raised, which lacks bona fide and even otherwise is misleading in nature as no such plea was raised by Babulal in his defence in the earlier suit (Civil Suit No.174-A/1991; decided on 27.1.1995) filed by the husband of the plaintiff late Chimmanlal Sharma, wherein the suit property was held to be of the ownership of late Chimmanlal Sharma and late Babulal was held to be the licensee thereof. With the aforesaid submission, it is prayed that application deserves to be dismissed, however, the trial Court having ignored the rigour of proviso to Order VI rule 17 CPC and facts and circumstances of the case, in fact and in effect committed patent illegality and serious jurisdictional error warranting interference under Article 227 of the Constitution of India. 10. Per contra, learned counsel for respondents-defendants contends that the power conferred upon the Court under Order VI rule 17 CPC is discretionary in nature. The power is to be exercuised by the trial Court to do complete justice between the parties. 10. Per contra, learned counsel for respondents-defendants contends that the power conferred upon the Court under Order VI rule 17 CPC is discretionary in nature. The power is to be exercuised by the trial Court to do complete justice between the parties. The occasion for amendment had arisen for the reason that the plaintiff had stated that the property devolved upon the husband by virtue of being adopted by late Tejram, whereas her only successor late Nathiyabai bequeathed the suit property in favour of late Babulal by Will dated 28.2.1986, hence, to keep the record straight such amendment was proposed. No prejudice is caused to the plaintiff and, therefore, in the interest of justice amendment was allowed.As such, the jurisdiction exercised byt he trial Court cannot be held to be excessive exercise of jurisdiction in the context of Order VI rule 17 CPC. Hence, no interference is called for. 11. Heard counsel for the parties. 12. The jurisdiction of the Court under Order VI rule 17 CPC though is discretionary in nature, but is a judicial discretion and required to be exercised with circumspection bearing in mind the basic considerations while considering the amendment. The aforesaid power is controlled and regulated by proviso thereto in CPC w.e.f. 1.7.2002, whereunder the trial Court is first required to address on jurisdictional facts related to amendment, i.e., whether the amendments proposed were of such nature which could not have been incorporated at the time of filing the written-statement despite due diligence and can be allowed after commencement of trial. Unless the trial Court satisfies itself as regards the existence of such facts and circumstances, the exercise of power shall be vulnerable in judicial review by the superior Court. 13. As a matter of fact, words "after the commencement of trial" as incorporated in proviso to Order VI rule 17 of CPC have received an authoritative interpretation and do not admit any doubt. It has been held that the date on which issues are framed is the date of first hearing. Filing of affidavit in lieu of examination-in-chief of a witness would amount to commencement of proceedings. (Emphasis supplied). For ready reference para 8 of Vidyabai and others v. Padmalatha and another [2009(3) MPLJ 122], which reads as under : "8. It has been held that the date on which issues are framed is the date of first hearing. Filing of affidavit in lieu of examination-in-chief of a witness would amount to commencement of proceedings. (Emphasis supplied). For ready reference para 8 of Vidyabai and others v. Padmalatha and another [2009(3) MPLJ 122], which reads as under : "8. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to 'commencement of proceeding'." (Emphasis supplied) 14. Trial Court needs to address on such jurisdictional facts more cautiously in cases where amendment sought are after commencement of trial and lacking in bona fides and formidably belated in absence of any explanation or jurisdiction. In the instant case, as referred above, no explanation has been offered as to why the fact of claim of title to the suit property on the basis of alleged Will dated 28.2.1986 was not incorporated in the written-statement in the year 2005. Besides, in previous proceedings (Civil Suit No.174-A/1991) no such plea was taken. Thereafter, at the stage when the plaintiff and defendants has closed the evidence, the amendment sought by defendant No.3, who remained ex parte, could not have been countenanced by the trial Court after 10 years of filing of written-statement. Hence, there, appears to be patent illegality and jurisdictional error in the order impugned. Accordingly, the same is set aside. 15. With the aforesaid, writ petition stands allowed.