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2016 DIGILAW 467 (MP)

Ganesh Prasad Ojha v. Shri Hariram Ji Ojha

2016-06-17

S.A.DHARMADHIKARI

body2016
ORDER 1. The petitioner aggrieved by the order dated 14.3.2012 passed in case No.COS 50-A/2011 by the 14th Civil Judge Class-II, Gwalior rejecting the application under Order 6 rule 17 of Code of Civil Procedure (for short “the code”) for amendment in the plaint, has filed the present writ petition under Article 227 of the Constitution of India. 2. The petitioner/plaintiff had instituted a civil suit for the declaration of title, permanent injunction and for cancellation of Will on the ground that the disputed property (agricultural land and residential house) is his ancestral property and the petitioner/plaintiff and the defendants No.1 and 2 have 1/3 (each) share in the property. 3. A written-statement was filed by the defendants. The respondent No.1/ defendant admitted the plaint allegations whereas respondent No.2 to 4/defendants denied the plaint allegations claiming themselves to be the exclusive owners and in possession of the suit property. On the basis of the pleadings, the trial Court framed as many as five issues and fixed the case for evidence of the plaintiff. 4. An application under Order 6 rule 17 read with section 151 of the Code was filed before the trial Court which was registered as I.A.No.2 of 2012 (Annexure P-5) with a view to elaborate the existing pleadings in the light of issues framed by the learned trial Court. It was vehemently opposed by the respondents by filing reply (Annexure P-6). The learned Court below rejected the application for the following reasons :- (i) The matter was fixed for recording plaintiff's evidence on 24.2.2012 and on the same day the application has been filed on the ground that he wants to elaborate the existing pleadings knowing fully that the plaintiff was in possession of the suit property, the same cannot be allowed. (ii) The petitioner has not shown due diligence inspite of the fact that he had knowledge and therefore, as per the proviso to order 6 rule 17 of the Code, amendment cannot be allowed after commencement of the trial. 5. Shri D.D. Bansal, the learned counsel for the petitioner, contended that the learned trial Court has grossly erred in rejecting the application on the wrong premises particularly when there was no delay in as much as the amendment was moved before commencement of the trial. 5. Shri D.D. Bansal, the learned counsel for the petitioner, contended that the learned trial Court has grossly erred in rejecting the application on the wrong premises particularly when there was no delay in as much as the amendment was moved before commencement of the trial. The proposed amendment does not change the nature of the suit since the basic pleadings are available in the plaint and the amendment proposed was just to elaborate the existing pleadings and as such the trial Court ought to have allowed the amendment, particularly when it is well known that the application for amendment should be dealt with liberally. In support of his contention, he relied on the judgment of the Hon'ble apex Court reported in 2009(3) MPLJ 122 (Vidyabai and others v. Padmalatha and another). 6. On the other hand, Shri T.C. Narwariya, counsel for the respondents submit that the Court below has not committed any legal error in rejecting the application. The learned counsel submitted that amendment Will change the nature of the suit and the same has been filed belatedly. 7. The Hon'ble apex Court in (2001)8 SCC 97 , Estralla Rubber v Dass Estate (P) Ltd has held that the amendment of pleadings under Order 6 rule 17 of the Code, is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to condition such as allowing the amendment should not result in injustice to other side. 8. The Hon'ble apex Court in (2012)5 SCC 377, Ramesh Kumar Agrawal v. Rajmala Exports (Pvt) Ltd and others, has held that liberal approach should be the general rules, particularly in case the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigation. 9. Heard the learned counsel for the parties at length. 10. It is an admitted position that the parties have not yet filed their documentary evidence in the suit. From the records, it is also clear that the suit is not on the verge of conclusion. 11. The apex Court in Vidyabai (supra), opined that the date on which the issues are framed is the date of first hearing. The code envisages taking of various steps at different stages of the proceedings. From the records, it is also clear that the suit is not on the verge of conclusion. 11. The apex Court in Vidyabai (supra), opined that the date on which the issues are framed is the date of first hearing. The code envisages taking of various steps at different stages of the proceedings. Filing of affidavit in lieu of examination in chief of witness would amount to “commencement of proceedings”. The said view of the apex Court has been followed by this Court in 2012(2) MPLJ 464 (Pratap and other v. Ganeshram and others), and 2014 RN 410 = 2014(4) MPLJ 143 (Manoj Jain v. Suman Goyal). 12. On critical analysis of the above legal position, it is clear that the documentary evidence in the suit was not filed, therefore, the trial had not commenced and as such this Court do not find any reason to reject the application for amendment in the plaint in view of proviso to Order 6 rule 17 of the Code. 13. As a consequence, the writ petition is allowed. Order dated 14.3.2012 passed by the trial Court is quashed and set aside. The application for amendment under Order 6 rule 17 is allowed. The Court below is directed to proceed from that stage in accordance with law. D. D. Bansal for petitioner; T. C. Narwariya for respondents.