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Madhya Pradesh High Court · body

2017 DIGILAW 1117 (MP)

Shanti Patidar v. Santosh

2017-11-01

VIVEK RUSIA

body2017
ORDER 1. The petitioners/plaintiffs have filed present writ petition being aggrieved by the order dated 13.1.2017, by which the application under Order 6 rule 17 of CPC seeking amendment in the plaint has been rejected. 2. The petitioners/plaintiffs filed the suit for declaration, partition and possession along with the mesne profit against the defendants in respect of the agricultural land on various survey numbers of Gram – Manawar. The plaintiffs have claimed ½ share in the total land of area 5.865 hectors. 3. After notice, the defendants No.1 and 2 filed written statement denying averments made in the plaint, thereafter, issues were framed and the case was fixed for plaintiffs' evidence and before they starting his evidence, an application under Order 6 rule 17 of CPC was filed seeking amendment in para 2 of the plaint. By way of amendment the plaintiffs wanted to make pleadings in respect of adoption of Ghisalal by Hiraji. The aforesaid application was opposed by the defendants on the ground that the fact of adoption came to the knowledge of the plaintiffs in the year 2011 when the written statement was filed. Thereafter the issues have been framed and the case has been fixed for evidence. Numbers of time, last opportunity to give evidence have been granted, but the plaintiffs are delaying the suit hence the application is liable to be rejected. 4. Learned trial Court vide order dated 13.1.2017 has rejected the application on the ground of delay hence the present petition before this Court. 5. It is correct that the plaintiffs filed the suit in the year 2011 and the defendants No.1 and 2 have filed their written statement in the year 2012. By way of special pleadings the defendants have disclosed that Ghasiya was adopted by Hiraji, thereafter the WILL dated 18.9.1993 was executed and the issue has been framed and the case was fixed for plaintiffs' evidence. 6. Along with the written statement, the defendants filed photocopy of the adoption deed dated 19.9.1993 and later on, filed an application for proving the said deed as secondary evidence. The said application was filed in the year 2014, which was decided vide order dated 24.11.2016 thereafter, the plaintiff filed an application seeking amendment in the plaint in respect of the adoption deed. The application was filed on 20.12.2016 i.e. within a month from 24.11.2016. The said application was filed in the year 2014, which was decided vide order dated 24.11.2016 thereafter, the plaintiff filed an application seeking amendment in the plaint in respect of the adoption deed. The application was filed on 20.12.2016 i.e. within a month from 24.11.2016. Since the original deed was not on record and first time, permission was granted to prove as secondary evidence given by the Court on 24.11.2016, therefore, it has become necessary for the plaintiffs to make the pleadings about the said deed, therefore, even if there was delay, it was bona fide on the part of the plaintiffs. The civil Court is the fact finding Court where all the parties must get ample opportunity to produce all the material on record. The provision of Order 6 rule 17 of CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings. If such amendments are necessary for determination of the real questions in controversy between the parties it ought to have been permitted. No strait – jacket formula can be laid down and mere delay cannot be a ground for refusing a prayer for amendment. Para 9 in the judgment delivered in the case of Sampath Kumar v. Ayyakannu and another, reported in 2003(1) MPJR 91, is reproduced below : “9. Order 6 rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting-form and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment. 7. In view of the above, present petition is allowed with the costs of Rs.5,000/- payable to respondents No.1 and 2. The order dated 13.1.2017 is hereby set aside. The trial Court is directed to permit the plaintiffs to amend their suit. If defendants want, they are also permitted to make quantified amendment in written statement.