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2017 DIGILAW 1100 (MP)

Manorma Agarwal v. Ramkumar Gupta

2017-10-25

VIVEK AGARWAL

body2017
ORDER 1. Petitioner has filed this petition being aggrieved by order dated 6.2.2017 passed by the Court of 8th Civil Judge Class-II, Gwalior, whereby the application under Order 6 rule 17 of the Code of Civil Procedure, as was filed by the defendant-tenant-respondent, has been allowed after commencement of the trial on the ground that the defendant-tenant-respondent had informed this ground about lack of relationship of landlord and tenant between the parties and also about the fact that the plaintiff was not the owner of the suit property, but earlier counsel had not mentioned such things in the written statement, and when he was questioned, he had submitted that he is filing only a short reply and since the defendant-tenant was not knowing legal intricacies, therefore, he could not mention all the issues, which have been raised now through the application under Order 6 rule 17 of CPC. 2. Learned counsel for the petitioner submits that as per the proviso below to Order 6 rule 17, CPC, such amendment could not have been allowed after commencement of the trial as there is a specific bar on allowing such kind of the amendment. It is also submitted that change of the counsel is not a ground for amending the pleadings. He has placed reliance on the decision of this Court in the case of Parasram v. Darasram, as reported in 1997(1) MPWN 234, wherein extensive amendment was sought after change of lawyer and the amendment was refused and the order of the trial Court was upheld by this High Court. 3. Learned counsel for the respondent, on the other hand, submits that the defendant-tenant is not a law knowing person and if his trust has been misplaced by the earlier counsel, then he should not be made to suffer. He further submits that in fact the impugned order gives an additional ground in favour of the plaintiff and, therefore, the plaintiff should not be disfavoured about allowing the application under Order 6 rule 17 of CPC. 4. He further submits that in fact the impugned order gives an additional ground in favour of the plaintiff and, therefore, the plaintiff should not be disfavoured about allowing the application under Order 6 rule 17 of CPC. 4. When the learned counsel for the respondent is specifically asked whether the defendant-tenant is a literate person or not, he fairly admits that the defendant-tenant is the literate person and he had signed the written statement after reading the same; but in the same breath, he submits that the defendant-tenant is not a law knowing person and, therefore, if the lawyer has not mentioned certain facts, which were narrated to him, then the party should not be made to suffer. 5. On such pleadings being advanced by the learned counsel for the respondent, when this Court asked that if a lawyer had not taken into consideration the instructions of the party, then it may amount to professional misconduct and what action has been taken by the defendant-tenant against such lawyer for such professional misconduct, he submits that neither such action has been taken nor such action is proposed against such lawyer who had defied the instructions of his party. Moreover, it is mentioned in the application under Order 6 rule 17, CPC that when the subsequent lawyer was preparing the case for evidence, then he was informed about the facts as have been incorporated in the application under Order 6 rule 17, CPC and on his advice such amendment application was filed. It is again surprising that when there was a change of the counsel prior to commencement of evidence, then it was incumbent upon the new lawyer to have gone through the brief and it was incumbent upon the defendant-tenant to have informed him about lapses in the written statement, which had taken place on the part of the earlier counsel, but even there is no such material on record to support the case of the defendant-tenant that he had informed such facts to the new counsel and he had also not incorporated them at the time of accepting the brief after withdrawal of the brief of the earlier counsel. Liberty was extended to the learned counsel for the respondent to file an affidavit of the earlier counsel that he was briefed about the facts, but he had, on his own sweet-will, decided not to mention the same and said opportunity had not been availed by the learned counsel for the respondent. 6. In view of such facts and circumstances merely change of counsel cannot be a ground for making an amendment application that too after commencement of the trial and, therefore, the trial Court has wrongly allowed the application and the impugned order suffers from lack of appreciation of the facts and it has been passed in a mechanical manner. Thus, the impugned order deserves to be quashed and is hereby quashed. Petition is allowed. 7. It is made clear that the costs, which was awarded by the trial Court while allowing the application under Order 6 rule 17, CPC, if has already been paid to the plaintiff, then the plaintiff will be liable to refund the same to the defendant-tenant.