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2017 DIGILAW 1208 (MP)

Ashok Jain v. Ruchita Agnihotri

2017-11-24

SUJOY PAUL

body2017
ORDER 1. This petition filed under Article 227 of the Constitution impugns the order dated 23.8.2017 to the extent petitioner/ plaintiff's application under Order 6 rule 17 CPC for amendment was disallowed. 2. Criticizing this order, Shri Gulatee learned counsel for the petitioner submits that on the strength of subsequent event whereby the other side had taken illegal possession on the suit land, the petitioner preferred an amendment application on 8.8.2017 with the specific averment that it is based on a subsequent event dated 21.5.2017. It is averred that during pendency of the case on 21.5.2017, the defendant No.1 had unauthorizedly taken possession of plaintiff's suit land which requires amendment because petitioner is seeking relief of restoration of possession. 3. The said application was opposed by filing the reply by the defendants. The Court below rejected the said application on the strength of the report of the Court Commissioner and the stand of the defendants. 4. Shri Gulatee submits that the question before the Court below was different. While deciding the amendment application, the Court below was not required to examine the merits and demerits of the case. The only thing which was required to be seen is whether amendment application is based on subsequent event or not? The Court below without adverting to the said aspect, dealt with the amendment application on merits. 5. Shri Garg, learned counsel for the respondents-defendants supported the impugned order. By taking this Court to the pleadings of the parties, report of the Court Commissioner and the impugned order, it is contended that the amendment application was rightly rejected. 6. I have heard the parties at length and perused the record. 7. A plain reading of amendment application makes it clear that it is based on the alleged subsequent event. The Court below solely rejected the application on the basis of Commissioner's report. The Court below has not dealt with the aspect of subsequent event and its necessity for the purpose of amendment in the pleadings. The apex Court in the case of Sampath Kumar v. Ayyakannu and another [ (2002)7 SCC 559 ], opined that an amendment, based on subsequent event is permissible. Such amendment may be necessary for avoiding multiplicity of litigation. In such amendment, recovery of possession can be sought for in the pending suit. The apex Court in the case of Sampath Kumar v. Ayyakannu and another [ (2002)7 SCC 559 ], opined that an amendment, based on subsequent event is permissible. Such amendment may be necessary for avoiding multiplicity of litigation. In such amendment, recovery of possession can be sought for in the pending suit. It is further held that merits of averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing the prayer for amendment. The apex Court reserved the right of defendants to take the stand in view of the amendment sought for by the plaintiff. 8. If the impugned order is tested on the anvil of said principle laid down in the case of Sampath Kumar (supra), it will be crystal clear that the Court below has missed the real point. The Court below has entered into the merits of the case and framed opinion on that basis. The Court below has not taken pains to see the effect of amendment application on the basis of subsequent events. Thus, the impugned order dated 23.8.2017, to the extent amendment application was disallowed, is set aside. The Court below is directed to rehear the parties on the amendment application and decide it afresh in accordance with law. 9. Petition is allowed to the extent indicated above. Siddarth Gulatee for petitioner; Amit Garg for respondents No.1 and 2; Vishal Dhagat, Government Advocate for respondent No.3/State.