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2018 DIGILAW 1875 (SC)

Sadhana Hajela v. Ulas Gupta

2018-11-14

L.NAGESWARA RAO, R.SUBHASH REDDY, S.A.BOBDE

body2018
ORDER In RE : SLP(C) No. 38329/2012 1. Leave granted. 2. This appeal is directed against the judgment and order of the Madhya Pradesh High Court, Bench at Gwalior in First Appeal No 295/2005. The First Appeal arises in the following circumstances : 3. The respondents herein, i.e, Tilak Pradhan (now deceased thr. Lrs.) & Ors. filed a suit against the appellants herein who are the defendants. The suit was for declaration and injunction in respect of the suit land which according to the appellants was in their possession in part performance of the contract. It is significant that during the pendency of the suit, the land was transferred to two other people who may be referred to as Defendant No. 2A and Defendant No. 2B. These two are the original defendants who are not contesting the matter. 4. It is also significant that an amendment application was made to implead Defendant Nos. 2A and 2B and for recovery of possession from Defendant No. 2A only and not from Defendant No. 2B This was later corrected in a subsequent amendment application to include the relief against Defendant No. 2B also. 5. The Trial Court dismissed the suit. It found that the defendants, i.e., the appellants herein and the transferees in title were in possession. Against this dismissal, the respondents herein preferred a first appeal before the High Court. 6. The High Court took a very unusual course. In paragraph 45 of the impugned judgment, the High Court observed that the Trial Court had committed an error in rejecting the application of the plaintiffs filed under order VI Rule 17 of CPC and allowed the same even though no revision had been preferred against the order of the Trial Court rejecting the application for amendment. Secondly, on the basis of such application being allowed, which itself is highly irregular, the High Court without giving any opportunity to the defendants to carry out consequential amendments or considering the need for further additional evidence on the plaintiffs' part, held that defendants were not in possession on the date of the suit. The High Court also directed that the defendants should return possession to the plaintiffs. 7. The High Court also directed that the defendants should return possession to the plaintiffs. 7. We find that the High Court has committed a serious error in reversing the finding of possession given by the Trial Court in favour of the appellants after allowing an application for amendment which was not before it and without giving an opportunity to the other side. It was wholly impermissible for the High Court to reverse the finding of possession inter alia on the basis of facts pleaded in the subsequent amendment application which are not incorporated or brought on record. We consider it appropriate to set aside the impugned order and remand the matter back to the High Court for fresh decision in accordance with law. The High Court may dispose of the matter as expeditiously as possible, preferably within 12 months from the date of receipt of copy of this order. 8. The appeal is allowed accordingly. 9. All contentions are left open. It will be open to the parties to have the disputes between them mediated upon. IN RE : SLP(C) NO. 12461/2018 Leave granted. 10. This appeal is directed against the final order dated 05.04.2018 passed by the High Court of Madhya Pradesh, Bench at Gwalior in M.C.C. No. 267/2016 whereby the High Court found the appellants/plaintiffs guilty of committing an offence punishable under Section 193 IPC. 11. Some time after the High Court decided the First Appeal No. 295/2005 in favour of the plaintiffs, the defendants moved an application under Section 340 of the Cr.P.C. alleging that the plaintiffs had interpolated the word 'B' indicating defendant 2B in the copy of the plaint incorporated in the private paper book which was permitted to be filed by the High Court. The High Court found that the plaintiffs made a false statement and appeared to have prima facie committed an offence punishable under Section 193 of the IPC. The plaintiffs have filed a special leave petition against the impugned order dated 05.04.2018. 12. We are not inclined to go into the question whether the High court in the first place ought to have entertained an application under Section 340, Cr.P.C, the matter having reached this Court. Be as it may, we find that the incorporation of the alphabet 'B' denoting Defendant 2B may not amount to be an offence under Section 193, IPC. We are not inclined to go into the question whether the High court in the first place ought to have entertained an application under Section 340, Cr.P.C, the matter having reached this Court. Be as it may, we find that the incorporation of the alphabet 'B' denoting Defendant 2B may not amount to be an offence under Section 193, IPC. The act may have been mistakenly performed in the first place because the fact that the defendant 2B had also purchased the property was known to both the sides and parties were alive to this as Defendant Nos. 2A and 2B had already been impleaded. In these circumstances, we do not consider it appropriate to sustain the order passed by the High Court. The order to the extent that it orders prosecution under Section 193 IPC and other provisions of the IPC is set aside. 13. The appeal is allowed accordingly.