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2017 DIGILAW 1282 (MP)

Shashi Mahana v. Savita Godal

2017-12-20

VIVEK AGARWAL

body2017
ORDER 1. Petitioner has filed this writ petition under Article 227 of the Constitution of India being aggrieved by order dated 22.11.2016 passed by the Court of Fourth Civil Judge ClassII, Shivpuri, whereby the application under Order 6 rule 17 of the Code of Civil Procedure (for short “CPC”) has been partly allowed and partly disallowed. 2. It is petitioner's contention that he had originally filed a suit for declaration, partition and permanent injunction and had moved an application after receiving the written statement for converting the suit into a suit for partition and all the pleadings in regard to partition have been negated by the trial Court. Therefore, the impugned order suffers from infirmity to the extent that the pleadings in regard to partition have been denied by the trial Court. 3. Learned counsel for the petitioner has placed reliance on a copy of the judgment of the Hon'ble Supreme Court in the case of Abdul Rehman v. Mohd. Ruldu, as reported in 2012 (III) MPWN 104 , wherein the Hon'ble Supreme Court has held that the power to allow amendment is wide and can be exercised at any stage of proceedings in the interest of justice. In para 8, the Hon'ble Supreme Court has held that the original provision was deleted by the Amendment Act 46 of 1999, however, it has been again restored by Amendment Act 22 of 2002, but with an added proviso to prevent application for amendment being 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. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. However, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 4. The object of the rule is that Courts should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 4. Similarly, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Chakreshwari Construction Pvt. Ltd. v. Manohar Lal as reported in (2017)5 SCC 212 , wherein the ratio is that if delay in filing the applications for amendment is explained by the appellant, the ratio laid down in the case of Revajeetu Builders and developers v. Narayanaswamy and Sons and others [ (2009)10 SCC 84 ], in para 63 of the judgment is to be considered, and if the delay is explained properly, then one cannot dispute that in appropriate cases, the parties are permitted to amend their pleadings at any stage not only during the pendency of the trial but also at the first and second appellate stage with the leave of the Court provided the amendment proposed is bona fide, relevant and necessary for deciding the rights of the parties involved in the lis. 5. He has also placed reliance on the judgment of this High Court in the case of Ganesh Prasad Ojha v. Shri Hariram Ji Ojha and others, as reported in 2016(II) MPWN 124 = 2016(3) MPLJ 435 , wherein relying on the judgment in the case of Ramesh Kumar Agrawal v. Rajmala Exports (Pvt) Ltd. [(2012)5 SCC 377], it has been held that liberal approach should be the general rules, particularly in case the other side can be compensated with costs. 6. On the other hand, the learned counsel for respondent No.1 submits that in the case of Chakreshwari Construction Pvt. Ltd. (supra), proviso below Order 6 rule 17 has not been considered. He has placed reliance on the judgment of this Court in the case of Pratap and Others v. Ganeshram and others, as reported in 2014 (3) MPHT 212 , wherein it has been held that in absence of showing “due diligence” amendment cannot be allowed. He has placed reliance on the judgment of this Court in the case of Pratap and Others v. Ganeshram and others, as reported in 2014 (3) MPHT 212 , wherein it has been held that in absence of showing “due diligence” amendment cannot be allowed. Similarly, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Vidyabai and others v. Padmalatha and another, as reported in (2009)2 SCC 409 , where again the issue of amendment after commencement of trial has been considered and decided. He further submits that though the title of the suit depicts that a suit for declaration, partition and permanent injunction was filed, but the prayer Clause will reveal that the suit was filed claiming declaration that the plaintiff is the owner and possessor of 800 sq.ft. of the plot out of measuring 2400 sq.ft., and the remaining portion measuring 1600 sq.ft. is of the ownership of defendants No.1 and 2. 7. Reading such relief Clause in the suit, the learned counsel for respondent no.1 submits that since no relief of partition has been sought, therefore, the trial Court has rightly rejected the application for amendment to the extent of relief for partition. 8. The prayer Clause as has been reproduced above clearly reveals that besides declaration, relief of partition too has been sought in relation to the property contained in Plot No.30, New Block, Shivpuri claiming 1/3rd share in the suit property. Therefore, the contention of the respondent that since no relief in the shape of partition was sought, therefore, the pleadings in regard to partition have been rejected, is not borne from the record. 9. As far as the plea of “due diligence” is concerned, the learned counsel for the petitioner has categorically pointed out that in the application itself, she has mentioned that the cause of action arose when the defendants putforth the Will of Smt. Yashwati Sood, which according to the petitioner is a forged and fabricated document. She has categorically taken a plea in regard to oral partition and, therefore, such amendment should have been allowed inasmuch as though the affidavits under Order 18 rule 4, CPC were filed, but the cross-examination of the witnesses had yet not commenced. 10. She has categorically taken a plea in regard to oral partition and, therefore, such amendment should have been allowed inasmuch as though the affidavits under Order 18 rule 4, CPC were filed, but the cross-examination of the witnesses had yet not commenced. 10. In the light of the law laid down by the Hon'ble Supreme Court of Abdul Rehman (supra) and so also the law laid down by the Hon'ble Supreme Court in the Revajeetu Builders and developers (supra), it has been held that the Court considering the application for amendment is required to consider whether the application for amendment is bona fide or mala fide and whether refusing amendment would in fact lead to injustice or lead to multiple litigation and whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case. The rule is that the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of the application. 11. On such touchstone, since the original suit contends prayer for partition and refusing amendment would lead to injustice and multiplicity of litigation and further no time limit is prescribed for filing a suit for partition, therefore, it is not barred by limitation, the application deserves to be allowed in toto and is allowed. The impugned order to the extent that it has selectively rejected the application under Order 6 rule 17, CPC is set aside and the application under Order 6 rule 17, CPC is allowed in toto with leave to the defendants to make consequential amendments in their written statement. M.P. Agarwal for petitioner; Sameer Kumar Shrivastava for respondent No.1.