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2018 DIGILAW 795 (MP)

Sainik Grih Nirman Sehkari Samiti v. Madhya Pradesh Rajya Sehkari Awas Sangh Maryadit

2018-09-14

SANJAY DWIVEDI

body2018
JUDGMENT : At the request of learned counsel for the parties, the matter is heard finally. 2. By the instant petition, the petitioner is assailing the order dated 22.12.2016 (Annexure-P-5) whereby the application submitted by the plaintiff/petitioner under Order 6 Rule 17 of the Code of Civil Procedure has been rejected. 3. Learned counsel for the petitioner submits that the impugned order is liable to be set aside mainly on the ground that the same has been based upon the fact that the amendment which is sought for relating to the facts which were in the knowledge of the plaintiff before commencement of the trial and, therefore, it is clear that the same has been filed by the plaintiff for delaying the trial. As per the learned counsel for the petitioner that there was no intention of the petitioner for delaying the trial but the amendment which is being brought to the notice of the Court is nothing but an elaboration in the recital of the agreement on which the suit was based. As per the petitioner, the amendment is not changing the nature of the suit and, in case, if application is allowed, the plaintiff will not lead any additional evidence and as such the same would not cause any prejudice to the defendants/respondents. Learned counsel for the petitioner further submits that as per the nature of the suit, mistakenly fixed court fee was paid but it was required to pay ad valorem court fee and accordingly by way of amendment the proper suit valuation is being done and ad valorem court fee would be paid. As per the petitioner the amendment which is being sought for would be helpful to the Court to adjudicate the suit. 4. Per contra, Shri Deshmukh, learned counsel appeared on behalf of respondent Nos.1 and 2 refuted the contention raised by the petitioner and submitted that in view of the proviso attached to the provisions of Order 6 Rule 17 of the CPC, the amendment cannot be allowed. He submits that the facts which are being brought to the record by way of amendment, were very much available with the plaintiff and were in his knowledge accordingly at later stage such amendment cannot be allowed in view of the law laid down by the Hon’ble Apex Court in a case reported in (2012) 11 SCC 341 (Abdul Rehman and another Vs. Mohd. Mohd. Ruldu and others) and also in view of the order passed by this Court in W.P. No.4958/2017 (Nand Kishore Choukse Vs. Smt. Ramsuti Bai Choukse and others). Learned counsel for the respondents submits that the plaintiff failed to show as to what prevented him to bring the facts on record which were very much in his knowledge even before commencement of the trial. Accordingly, he submits that the petition having no merits as the order passed by the Court below is strictly in accordance with law and the same does not call for any interference by this Court. 5. Ms. C.V. Rao, learned counsel for the petitioner placed reliance on a judgment reported in (2018) 2 SCC 132 (Mohinder Kumar Mehra Vs. Roop Rani Mehra and others), in which, Hon’ble the Supreme Court taking note of the fact that the application for amendment filed by the party and was pending in the civil suit and thereafter without deciding the application the parties led their evidence although covering the facts which were the part of the amendment application. Hon’ble the Supreme Court also taken help of the law laid down by its Bench in a case of Chander Kanta Bansal Vs. Rajinder Singh Anand, reported in (2008) SCC 117, in which, the object of newly inserted proviso under Order 6 Rule 17 of the CPC has been considered in the following manner:- “13. The Proviso to order VI Rule 17 prohibited entertainment of amendment application after commencement of the trial with the object and purpose that once parties proceed with the leading of evidence, no new pleading be permitted to be introduced. The present is a case where actually before parties could led evidence, the amendment application has been filed and from the order dated 14.02.2014, it is clear that the plaintiff’s case is that parties has led evidence even on the amended pleadings and plaintiff’s cases was that in view of the fact that the parties led evidence on amended pleadings, the allowing the amendment was mere formality. The defendant in no manner can be said to be prejudiced by the amendments since plaintiff led his evidence on amended pleadings also as claimed by him.” The Supreme Court after taking note of the fact that when application for amendment is pending and parties led their evidence taking into consideration the facts mentioned in the amendment application directed that the said application be allowed as no prejudice cause to the parties. She has also placed reliance upon a judgment reported in 2008 (3) MPLJ 273 (Puran Ram Vs. Bhaguram and another), in which, the Supreme Court has observed that it is a discretion of the Court to allow or reject the application for amendment, but the amendment cannot be denied on technical ground. She has also placed reliance upon a decision reported in (2009) 10 SCC 626 (Surender Kumar Sharma Vs. Makhan Singh), in which, the Supreme Court has observed that the amendment cannot be rejected merely on the ground of delay if the Court finds that by allowing the application real controversy between the parties may be resolved. 6. Looking to the nature of amendment, it reflects that the plaintiff is basically amending the pleadings relating to the terms of the agreement dated 16.05.1995. 7. As per the learned counsel for the petitioner, the evidence of the parties is already over and the case is fixed for final argument. She also undertakes that even if the amendment application is allowed she will not lead any additional evidence on the basis of amended pleadings and, therefore, there would be no delay in deciding the suit. She further submits that no prejudice would cause to the party. 8. Shri Deshmukh, learned counsel for the respondents heavily relied upon a decision reported in the case of Abdul Rehman (supra), saying that the plaintiff failed to show any due diligence which is requirement of law and as such his application of amendment has rightly been rejected. 9. After hearing the arguments and considering the facts available on record, I am of the opinion that no doubt the proviso to Order 6 Rule 17 of the CPC prohibited entertainment of amendment application after commencement of the trial with the object and purpose that once the parties proceed with the leading of evidence, no new pleading be permitted to be introduced. But in the present case, as contended by the parties that during the pendency of the amendment application, the parties led their evidence and concluded the same even taking into consideration the proposed amended pleadings and as assured by the plaintiff that no further evidence would be led by him if amendment application is allowed. The similar situation arose in the case of Mohidner Kumar Mehra (supra) and Hon’ble the Apex Court allowed the amendment application observing that the defendant in no manner can be said to be prejudiced by the amendment proposed. In the present case also no prejudice would be caused to the defendants/respondents, if the amendment is allowed because it would be empty formality because the case is already closed for final arguments. 10. In the case of Mohinder Kumar Mehra (supra), in paragraph-14, the Apex Court has considered the object of the amendment made in Order 6 Rule 17 of the CPC, which reads as under:- “14.This Court in Chander Kanta Bansal Vs. Rajinder Singh Anand, (2008) 5 SCC 117 has noted the object and purpose of amendment made in 2002. In Para 13, following has been held:- “13. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other’s case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.” In view of the above as observed by Hon’ble the Supreme Court that the object for adding proviso to curtail delay and expedite adjudication of the case, in the present case, when the plaintiff is giving undertaking that no further evidence would be led by him on the basis of amended pleadings and also in view of factual circumstance that the evidence of the parties is already over taking note of the factual aspect of the amended pleadings, the law laid down in the case of Mohinder Kumar Mehra (supra) is applicable with full force as no prejudice cause to the parties, the application for amendment is allowed with a clear understanding that no opportunity would be granted to the plaintiff to lead additional evidence. Accordingly, the order passed by the Court below is set aside, Court below is directed to allow the petitioner to incorporate the amendment in the plaint, no adjournment will be given. 11. Petition stands disposed of in the above terms. Party shall bear their own costs.