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2018 DIGILAW 204 (MP)

Ashok Gupta v. Bholanath

2018-02-20

ANAND PATHAK

body2018
ORDER : Anand Pathak, J. Shri R.K.Soni, learned counsel for the petitioner/defendant. Shri Ashok Khedkar, learned counsel for respondent No. 1/plaintiff. Shri Sanjeev Jain, learned counsel for respondents No. 2 to 4/defendants. Shri Abhishek Mishra, learned GA for respondent No. 5/State. With consent, heard finally. 2. Petitioner/defendant has filed this petition under Article 227 of the Constitution of India being aggrieved by order dated 6/7/2017 passed by trial Court, whereby, the application moved by the petitioner/defendant under Order VI rule 17 CPC has been rejected. 3. According to learned counsel for the petitioner, trial Court has rejected the application on the ground that issues have already been framed and evidence of plaintiff has started and therefore, such application at belated stage cannot be allowed. He submits that trial Court rejected the application only on the technical ground without considering the merit of amendment and the fact that after framing of issues the plaintiff has not filed affidavit under Order XVIII Rule 4 CPC and therefore, trial cannot be considered to be started or commenced. 4. On the other hand, learned counsel for respondent No. 1 opposed the application on the ground that application has been filed at a belated stage just as a dilatory tactic to delay the proceedings when issues were already framed and plaintiff's evidence has started. Therefore, trial Court has not committed any error while passing the impugned order. He prayed for rejection of the petition. Heard. 5. The present petition has been filed by defendant No. 4 against the order impugned whereby, his application under Order VI Rule 17 CPC has been rejected. Through the said application, petitioner wants to incorporate certain pleadings in his counter claim, whereby, he wants to make certain amendments in relief clause regarding restoration of possession. If the said pleadings are included in counter claim then all the parties will have an opportunity to contest the case by preferring additional pleadings to contest the claim of the petitioner. 6. Further to avoid multiple proceedings, it is imperative that amendment be included in the plaint. The Hon'ble Apex Court in the case of Abdul Rehman and Anr. Vs. Moh. Ruldu and Ors., (2012) 11 SCC 341 has held that main purpose of allowing amendment is to minimize the litigation and the amendments that may be necessary for determining the real controversy between the parties, should be allowed. The Hon'ble Apex Court in the case of Abdul Rehman and Anr. Vs. Moh. Ruldu and Ors., (2012) 11 SCC 341 has held that main purpose of allowing amendment is to minimize the litigation and the amendments that may be necessary for determining the real controversy between the parties, should be allowed. Similarly, in the case of Vidyabai & Ors. Vs. Padmalatha & Anr., 2009 (3) MPLJ 122, the Apex Court has considered the proviso of Order VI Rule 17 CPC and due diligence clause. The Division Bench of this Court in the case of Jaspreet Kaur and another Vs. Ramkrishna & others, 2010(3)MPLJ 387, has held that the litmus paper test for allowing the amendment is whether the amendment is necessary for complete and correct adjudication of the controversy involved between the parties. The said pronouncement is based upon the judgment referred by the Apex Court in the case of Ragu Thilak D. John Vs. S. Rayappan & Others, (2001) 2 SCC 472 and in the case of Rajesh Kumar Agarwal & Ors. Vs. K.K. Modi & Ors., AIR 2006 (SC) 1647 , therefore, the case in hand is supported by the above referred legal pronouncements. 7. Therefore, the petition deserves to be allowed as no prejudice would be caused to any of the parties, if the amendment application is allowed. The plaintiff has yet to start his evidence, therefore, the amendment which conclusively decide the controversy or which does not change the nature of the suit, can be incorporated through the amendment application. 8. In the result, petition is allowed. Subject to deposit of cost Rs. 2,500/-, order impugned passed by the trial Court is hereby set aside and petitioner is permitted to amend the counter claim as per the application under Order VI Rule 17 of CPC. Trial Court to proceed accordingly. Petition stands allowed and disposed of accordingly.