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2016 DIGILAW 710 (MP)

Narayan Prasad v. State of M. P.

2016-08-17

ROHIT ARYA

body2016
ORDER 1. By this petition, under Article 227 of the Constitution of India, petitioner/plaintiff No.1 taking exception to the order dated 11.10.2013 has approached this Court with a grievance that though, on one hand, the trial Court has allowed the application for taking documents on record filed under Order 7 rule 14, CPC, yet the amendment based upon the aforesaid documents has been negated, purportedly for the reasons that suit is pending since 1994, issues have been framed, case is fixed for plaintiff's evidence, the amendment sought is not of such nature which can be said to be not in the knowledge of the plaintiff at the time of filing of the suit and, therefore, by force of proviso to Order 6 rule 17, the aforesaid amendment cannot be allowed. Moreover, if the amendment is allowed that shall tantamount to permitting contradictory pleas to be taken on record and, therefore, the nature of suit will change. 2. Learned counsel for the petitioner challenging the aforesaid order contends that the suit for declaration, injunction and for cancellation of Patta has been filed inter alia contending that the suit land has been in possession of plaintiff and his predecessor-in-title since 1950. Behind the back of plaintiff, a Patta was allegedly awarded in favour of one Balchand illegally and unauthorisedly. It is submitted that the documents taken on record relate to Khasra Panchsala entries in the revenue record to demonstrate that predecessor-in-title of petitioner was in possession of the suit land since Samvat 2005 doing cultivation thereon as described in the document as Maurushi Krishak. Accordingly, in line with the averments made in paragraph 2 of the plaint, petitioner sought to amend the written statement by proposed addition of paragraph 13(e) where under averments based upon the documents are sought to be incorporated. It is submitted that neither the nature of suit has changed nor the relief claimed in the suit has changed. It is submitted that plaintiff's evidence has not started. Defendants, if intend, can amend the written statement and by doing so no prejudice will be caused to them. With the aforesaid pleadings, learned counsel prays for setting aside of the order passed by the trial Court. 3. Per contra, Shri N.K.Gupta, learned Senior Counsel has contended that the suit is of the year 1994. Defendants, if intend, can amend the written statement and by doing so no prejudice will be caused to them. With the aforesaid pleadings, learned counsel prays for setting aside of the order passed by the trial Court. 3. Per contra, Shri N.K.Gupta, learned Senior Counsel has contended that the suit is of the year 1994. No reason, much less plausible reason has been given while seeking proposed amendment to justify its incorporation in the plaint. Once issues have been framed and trial has commenced, by force of proviso to Order 6 rule 17, CPC the aforesaid amendment has rightly been rejected. If the amendment is allowed, the nature of suit will change as plaintiff on one hand, in the plaint, has asserted title by adverse possession, while on the other hand, by way of proposed amendment, he asserts title by virtue of being Maurushi Krishak. Therefore, the trial Court did not commit any error of law or jurisdictional error warranting interference under Article 227 of the Constitution. 4. Heard, counsel for the parties. 5. Admittedly, suit for declaration, injunction and cancellation of Patta is pending consideration. Paragraph 2 of the plaint is well explicit as regards claim of plaintiff for title based on possession of the suit land since 1950. True it is that in following few paragraphs, plaintiff while taking exception to grant of Patta to defendants has raised a plea of adverse possession against defendants. However, this by itself cannot be construed that the suit is based on the plea of adverse possession solely. That apart, the trial Court, if on one hand has permitted the documents to be taken on record relating to the revenue records of Samvat 2005 regarding predecessor-in-title of the plaintiff, in all fairness, the trial Court should not have rejected the application for amendment based on the aforesaid documents as the amendment as proposed, in no way, changes the nature of suit or the relief claimed in the suit. Moreover, the evidence is yet to commence. No prejudice is caused to the defendants and defendants will be at liberty to make any consequential amendment in the written statement. That apart, it needs no mention that procedural laws are handmaid laws and are required to be applied in a given set of facts and circumstances with a prime object of doing substantial justice between the parties. No prejudice is caused to the defendants and defendants will be at liberty to make any consequential amendment in the written statement. That apart, it needs no mention that procedural laws are handmaid laws and are required to be applied in a given set of facts and circumstances with a prime object of doing substantial justice between the parties. True it is that proviso to Order 6 rule 17 has been appended to ensure that the provision is not misused resulting into dilatory tactics causing undue delay in conclusion of the trial, but at the same time, the same can also not be used as a baton to deny legitimate amendment sought to be brought on record in conjunction with existing pleas. 6. Hence, there appears to be an illegality and irregularity in the order passed by the trial Court while deciding the application under Order 6 rule 17, CPC. The impugned order to that extent is, accordingly, set aside. However, respondents/defendants are set at liberty to seek amendment in the written statement, if so advised. 7. At this stage, prayer of early disposal of suit made by Shri N.K.Gupta, senior counsel is countenanced and the trial Court is directed to ensure early disposal of the suit, preferably within nine months from the date of submission of certified copy of this order. 8. Petition, accordingly, stands disposed of. A. V. Bhardwaj for petitioner; Harish Dixit, Government Advocate for respondents No.1 to 3/State; N. K. Gupta with Sanjay Sharma for respondent No.4; Raghvendra Dixit for respondent No.6.