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2016 DIGILAW 857 (MP)

Dhannalal v. Heeralal

2016-09-22

ROHIT ARYA

body2016
ORDER 1. This writ petition under Article 227 of the Constitution of India by the defendant is filed taking exception to the order dated 8.12.2015 passed in Civil Suit No.31-A/2012 by the trial Court. Plaintiffs application under order VI Rule 17 CPC has been allowed. 2. Learned counsel for the petitioner/defendant has made the following submissions: (i) plaintiffs/respondents have filed the suit for declaration and partition inter alia contending that the plaintiffs are legal heirs of Bhamri Bai. Bhamri Bai is the real sister of Alma, Ghasita and Chunia sons of Baldev. After death of Alma, the plaintiffs are entitled for share of Alma as his successors (Para 4 of the plaint). It has also been pleaded in the plaint that Alma, Ghasita and Chunia are having 1/3rd share each in the suit property – Para 7 of the plaint. (ii) defendants have filed written statement and denied the claim as contained in paragraph 4 of the plaint with the contention that the suit property was of the joint ownership property of three brothers, namely; Alma, Ghasita and Chunia. All the three brothers have executed the sale deeds in“ favour of defendants No.1 and 2 on 27.4.1981 and 10.3.1998. Thereafter, the defendants No.1 and 2 have become absolute owners of the suit property. It is denied that the plaintiffs are entitled for share in 1/3rd share of Alma; (iii) after pleadings were filed by the parties, issues have been framed by the trial Court; (iv) plaintiffs chose not to file affidavits under order XVIII rule 4 CPC though three opportunities have been afforded; (v) however, plaintiffs have filed an application under order VI rule 17 CPC after two years of filing the suit seeking leave of the Court for amendment in the plaint to the effect that suit property is ancestral property, the original owner was Baldev. After death of Baldev, the entire property devolved upon his heirs in equal shares; and (vi) admittedly, plaintiffs did not assign reason for having not incorporated the facts in the plaint though in their knowledge at the time of filing the suit. Further, plaintiffs have also not explained the delay of two years in filing the application for amendment but the trial Court has allowed the application under the pretext that the amendment can be allowed at any stage of the suit so that complete justice can be done between the parties. Further, plaintiffs have also not explained the delay of two years in filing the application for amendment but the trial Court has allowed the application under the pretext that the amendment can be allowed at any stage of the suit so that complete justice can be done between the parties. Moreso, the proposed amendment has not caused any prejudice to the defendants/respondents. 3. Learned counsel submits that apart from the fact that there was no justification given for not incorporating relevant facts and no explanation has been offered for the delay caused in filing the application, it is submitted that in fact, the amendment allowed by the trial Court has caused material change in the nature of the suit as at the time of filing of the suit, there was no claim whatsoever that the suit property is an ancestral property instead the plaintiffs claimed share through Alma. Therefore, the trial Court has committed grave illegality while not addressing upon the nature of the amendment sought to be incorporated in the plaint. Thus, the impugned order suffers from patent jurisdictional error warranting interference by this Court under Article 227 of the Constitution of India. 4. Per contra, Shri Santosh Agarwal, learned counsel for the respondents/plaintiffs submits that irrespective of the fact that there was no explanation in the application for not incorporating the facts in the plaint though in the knowledge at the time of filing the suit and no explanation offered for the delay of two years in filing the application, since the amendment is relevant for doing complete justice between the parties and no prejudice being caused to the defendants/respondents, the trial Court did not commit any error on fact and in law by allowing the amendment as the trial has not commenced and only issues have been framed. 5. Heard learned counsel for the parties. 6. For ready reference, Order VI rule 17 CPC is quoted below: “ORDER VI-PLEADINGS GENERALLY. 17. 5. Heard learned counsel for the parties. 6. For ready reference, Order VI rule 17 CPC is quoted below: “ORDER VI-PLEADINGS GENERALLY. 17. Amendment of pleadings— The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: “provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 7. True it is, that the procedural laws are handmaid laws applied to a given factual matrix of the case with primary aim to do complete justice between the parties. However, the discretionary jurisdiction conferred upon the trial Court is not unbridled and un-canalized but it has to be exercised judiciously with circumspection. The trial Court, in all fairness, ought to have first understood the cause of action and scope given rise to filing of the suit before adverting to the amendment application so filed. It appears that the trial Court remained oblivious of aforesaid requirement while allowing the amendment application. 8. As discussed above, the original claim of the plaintiffs is a share in 1/3rd share of Alma as evident from paragraph 4 of the plaint with further pleading that there is 1/3rd share of each of three brothers, viz; Alma, Ghasita and Chunia in the suit property. Now, the plaintiffs intend to amend the plaint to assert that the suit property is ancestral property and was of the ownership of Bhamri Bai (mother of the plaintiffs) and three brothers, viz., Alma, Ghasita and Chunia; daughter and sons of Baldev. Apparently, the plaintiffs have changed the nature of the suit and the claim originally made in the plaint, therefore, such amendment cannot be considered as the same tantamount to changing the nature of the suit to a great extent. In the opinion of this Court, the trial Court has not considered the application in right perspective. Hence, the impugned order suffers from patent illegality and jurisdictional error. Consequently, the impugned order dated 8.12.2015 is set aside. 9. The writ petition is allowed and disposed of, accordingly. 10. In the opinion of this Court, the trial Court has not considered the application in right perspective. Hence, the impugned order suffers from patent illegality and jurisdictional error. Consequently, the impugned order dated 8.12.2015 is set aside. 9. The writ petition is allowed and disposed of, accordingly. 10. At this stage, learned counsel for the plaintiffs craves leave of the Court to lead evidence to establish her claim. In the opinion of this Court, no specific direction is required to be issued and the parties shall always be at liberty to lead evidence in support of their pleadings. 11. It is made clear that this Court has not expressed any opinion on merits of the case. Sameer Kumar Shrivastava for petitioner; Santosh Agarwal for respondents No. 1 to 4; Anand V. Bhardwaj for respondents No.10 to 12