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Madhya Pradesh High Court · body

2019 DIGILAW 346 (MP)

Kanakmal S/o Basantilal v. Nighat Jahah

2019-04-29

VIVEK RUSIA

body2019
ORDER : Heard. 2. The petitioners/defendants No. 1 to 3 have filed the present petition being aggrieved by order dated 9-2-2019 whereby their application filed under Order 6, Rule 17 of Civil Procedure Code, seeking consequential amendment in the written statement has been rejected. 3. The respondent No. 1 plaintiff filed the suit for declaration and permanent injunction for claiming share in the house No. 3530 and 3530/1. The present petitioners have filed the written statement on 9-2-2018. Thereafter, the plaintiffs have filed an application under Order 6, Rule 17 of the Civil Procedure Code seeking amendment in the plaint, in respect to challenge the decree dated 24-7-1978 as null and void. The plaintiffs have also proposed the amendment in respect to the challenge to the mutation proceedings dated 23-9-2017 in respect of the suit house in favour of the defendants No. 1 to 3. 4. Vide order dated 2-5-2018, the learned trial Court has allowed the application and granted liberty to the defendants for making consequential amendment in W. S. On 5-5-2018 and 16-5-2018, the trial Court has directed the plaintiffs to file an amended copy of the plaint. On 16-5-2018, the counsel appearing for the present petitioners made statement that the defendants do not wish to bring the consequential amendment. Thereafter, the trial Court framed nine issues for adjudication on 16-11-2018. Thereafter, on 17-1-2019, the present petitioners have filed an application under Order 6, Rule 17 of Civil Procedure Code, seeking consequential amendment in the written statement. The said application was opposed by the plaintiffs and vide order dated 9-2-2019, the trial Court has rejected the same, hence the present petition. 5. Shri M. M. Bohra, learned counsel for the petitioners submits that inadvertently the counsel has made a statement against the interest of the defendants. The consequential amendment is necessary in the written statement. The Court has adopted the hyper technical approach. The learned trial Court has wrongly applied the provisions of Order 6, Rule 18 of Civil Procedure Code, which is applicable for incorporation of the amendment in the plaint within 14 days. 6. Shri Sameer Athawale, learned counsel appearing for the plaintiffs submits that once the petitioners have declared that they do not wish to amend the written statement then, there is no provision in Civil Procedure Code to file an application under Order 6, Rule 17 of Civil Procedure Code. 6. Shri Sameer Athawale, learned counsel appearing for the plaintiffs submits that once the petitioners have declared that they do not wish to amend the written statement then, there is no provision in Civil Procedure Code to file an application under Order 6, Rule 17 of Civil Procedure Code. On the basis of the proposed amendment in the plaint the issues have been framed. Hence, the petition is liable to be dismissed. 7. The plaintiffs have filed a suit on 23-8-2018. After receipt of the summon immediately the present petitioners have filed reply on 9-2-2018. 8. Thereafter, the defendants No. 4, 5 and 6 were added as defendants and till 16-5-2018, they did not file the written statement. In the written statement, the petitioners declared that the partition took place on 21-12-1959. Their names have been mutated in the record of Municipal Council. The Civil Suit No. 22A/79 had been decided long back. The suit is time barred and suffers from principle of res judicata also. After filing of the said written statement, the plaintiffs have filed an application under Order 6, Rule 17 of Civil Procedure Code, challenging the decree dated 24-7-1978, passed in Civil Suit No. 22A/77 and also challenged the mutation in the name of defendants. The trial Court has allowed the amendment vide order dated 2-5-2018. Though counsel appearing for the petitioners have made a statement that the defendants are not willing to amend their written statement, but later on the defendants have filed an application under Order 6, Rule 17 of Civil Procedure Code, specially denying grant of decree to the plaintiffs in respect to the judgment and decree dated 24-7- 1978. Their written statement is of a clarificatory in nature and if same is allowed no prejudice would cause to the plaintiffs. The suit is still at the initial stage as the evidence of the plaintiffs has not been started so far. Before the Civil Court all the parties must get full opportunity to establish their rights. The Apex Court in the case of Baldev Singh and ors. vs. Manohar Singh and anr., reported as (2006) 6 SCC 498 , the Apex Court has held that the Courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. The Apex Court in the case of Baldev Singh and ors. vs. Manohar Singh and anr., reported as (2006) 6 SCC 498 , the Apex Court has held that the Courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. It has been further held that the commencement of trial as used in proviso to Order VI, Rule 17 of Civil Procedure Code must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. 9. In the recent judgment of Apex Court in the case of Chakreshwari Construction Pvt. Ltd. vs. Manoharlal, 2017(3) M.P.L.J. (S.C.) 717, the Apex Court has held that if the amendment proposed do not change the nature of the case originally set up by the party, do not introduce any fresh cause of action; no prejudice is likely to be caused to the opposite party because the respondent in such eventuality would have got an opportunity to make consequential amendment in the written statement and file additional documents in rebuttal, the trial Court ought to have allowed the application filed under Order VI, Rule 17 of Civil Procedure Code. Para 14 to 16 of the judgment are reproduced below :— “14. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. In the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons and others, (2009) 10 SCC 84 , this Court, after examining the entire previous case law on the subject, culled out the following principle in Para 63 of the judgment which reads as under : “63. In the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons and others, (2009) 10 SCC 84 , this Court, after examining the entire previous case law on the subject, culled out the following principle in Para 63 of the judgment which reads as under : “63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment : (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6, Rule 17. These are only illustrative and not exhaustive. 15. Applying the aforesaid principle of law to the facts of the case at hand, we are of the considered opinion that the amendment proposed by the appellant so also the permission sought for filing additional documents deserved to be allowed. 16. These are only illustrative and not exhaustive. 15. Applying the aforesaid principle of law to the facts of the case at hand, we are of the considered opinion that the amendment proposed by the appellant so also the permission sought for filing additional documents deserved to be allowed. 16. It is for the reasons that firstly, the amendment proposed did not change the nature of the case originally set up by the appellant in the eviction petition; Secondly, the amendment did not introduce any fresh cause of action; Thirdly, the amendment was relevant for deciding the question of subletting and availability of alternative accommodation with the respondent; Fourthly, the facts proposed in the amendment not being in the personal knowledge of the appellant and having obtained from the concerned State department recently, the same could be allowed to be brought on record for its consideration; Fifthly, no prejudice was likely to be caused to the respondent, if the applications had been allowed because the respondent in such eventuality would have got an opportunity to make consequential amendment in his written statement and file additional documents in rebuttal; and lastly, in order to prove the case, the amendment proposed and permission to file documents should have been granted.” 10. In view of the above, the impugned order dt. 9-2-2019 is set aside. Application filed under Order 6, Rule 17 of Civil Procedure Code is allowed. If required, the trial Court may frame additional issue on the basis of amended W. S. If the plaintiffs have filed their evidence by way of affidavit, they are also permitted to file new affidavit. 11. Accordingly, the petition is allowed with the cost of Rs. 3,000/-. Petition allowed.