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Madhya Pradesh High Court · body

2017 DIGILAW 113 (MP)

Omkar Lal v. Vidya Bai

2017-01-20

ROHIT ARYA

body2017
ORDER 1. Petitioner/defendant has approached this Court challenging the legality, validity and propriety of the order impugned order dated 18.9.2015, passed in Civil Suit No.63-A/2015 by the trial Court. The respondent/plaintiff application filed under Order VI rule 17 CPC has been partly allowed. 2. The facts relevant for disposal of this writ petition are in narrow compass. Respondent No.1/plaintiff has filed a suit for declaration, injunction and recovery of possession inter alia contending that the plaintiff by virtue of being daughter-in-law of the original Patta-holder of the land in question, Shrichand has a share being member of joint Hindu family. Defendants have questioned the title of the plaintiff and also threatened for forcible dispossession, asserting themselves to be title-holders therefore, the instant suit has been filed. Suit is pending for consideration. The respondent/plaintiff has filed an application under Order VI rule 17 CPC, inter alia pleaded that after death of wife of original Patta holder Bhauri Bai, share of the plaintiff in the suit property shall extend to 1/6th as the plaintiff along with two daughters of the deceased; namely, Gauma Bai and Gundi Bai has equal share to the property left behind by Bhauri Bai. That apart, plaintiff also tried to assail recording the names of defendants in the revenue record alleging fraud and manipulation behind back of the plaintiff on the ground that there is no division of property between Bhauri Bai and defendants. That apart, plaintiff also sought to incorporate a relief that property described as Plot/house No.18 in the amendment application be declared to be ownership of the plaintiff and respondents No.7 and 8 (newly proposed defendants) be added as party in the suit. 3. Assailing the impugned order, learned counsel for the defendant/petitioner contended that the nature of suit shall change inasmuch as not only the subject matter of suit changes but also due to additional relief prayed for in respect of proposed defendants cannot be countenance under the garb of allowing amendment application under Order VI rule 17 CPC. Accordingly, as a matter of fact the trial Court has exceeded its jurisdiction in purported exercising of inherent power under Order 1 rule 10 CPC by allowing the amendment as proposed in 3 (A), 6(A), 6(B), 7 (B) 7(C) and prayer clause (A), though rejected the amendment as proposed in 7(A) and prayer clause (B). Hence, the impugned order deserves to the set aside. 4. Hence, the impugned order deserves to the set aside. 4. Per Contra, learned counsel for the respondent/plaintiff submits that the trial has not yet commenced, therefore the trial Court has not committed any illegality or irregularity in allowing the amendment application to avoid multiplicity of proceedings and to subserve the justice between the parties. No interference is warranted by this Court in exercise of jurisdiction under Article 227 of the Constitution of India. Hence prayed for dismissal of the petition. 5. Heard. 6. Law is well settled that the trial Court while regulating the procedure in a trial of suit is required to look into the procedural law codified under the CPC. Hence, the trial Court is required to exercise the jurisdiction conferred upon it with care, caution and circumspection, particularly, exercising discretionary jurisdiction under Order VI rule 17 CPC. After all, the procedural laws are handmaid laws which are intended to subserve the cause of justice between the parties. The proviso to Order VI rule 17 CPC could not have been applied by the trial Court in hyper technical manner for allowing the amendment sought for as the same is beyond the scope for resolving the controversy involved in the suit, therefore the amendment application should not have been allowed. That apart, law as regards discretionary jurisdiction of the Court in the matter of dealing with amendment of pleadings is also well settled. The Court shall exercise the jurisdiction with due care and caution to ensure that amendments proposed are not only relevant but also within the scope of the nature of the suit qua the pleadings in the suit as Court cannot permit to change the nature of the suit or relief sought under the garb of allowing amendment under Order VI rule 17 CPC. Therefore, upon perusal of the order impugned this Court finds that trial Court has not exercised its jurisdiction in proper perspective as the amendment allowed will change the nature of the suit as rightly pointed out by learned counsel for the petitioner. Hence the impugned order is set aside. 7. At this stage, learned counsel for the plaintiff/respondent seeks leave of the Court to withdraw the suit and file a fresh suit incorporating all the facts and grounds available to the plaintiff. In the opinion of this Court, such indulgence by this Court is not warranted. Hence the impugned order is set aside. 7. At this stage, learned counsel for the plaintiff/respondent seeks leave of the Court to withdraw the suit and file a fresh suit incorporating all the facts and grounds available to the plaintiff. In the opinion of this Court, such indulgence by this Court is not warranted. The plaintiff/respondent is always free to approach the trial Court by moving an appropriate application in that behalf and the trial Court shall endeavour to consider and decide the same in accordance with law. 8. The writ petition stands allowed and disposed of with the aforesaid observation. 9. It is made clear that this Court has not expressed any opinion on the merits of the case.