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2019 DIGILAW 585 (MP)

Purushottam Das Agarwal v. Mohan Khetan

2019-08-16

SHEEL NAGU

body2019
JUDGMENT 1. Supervisory jurisdiction of this Court u/Art. 227 of Constitution is invoked assailing the dismissal of an application preferred by the plaintiff u/O VI Rule 17 CPC, vide order dated 30.4.2019, P/1 passed in civil suit No. 48-A/2014 by Second Civil Judge Class-I, Gwalior (M.P.) on the ground of failure of plaintiff to show due diligence and for adopting delaying tactics. 2. In a suit for mandatory injunction pending at the stage of adducing of evidence of plaintiff, an application u/O VI Rule 17 CPC was moved by the plaintiff. Prayer was made that in view of allowing of an application u/O 7 Rule 14(3) CPC of the plaintiff allowing bringing decree dated 1.12.2015 on record passed in civil suit 43-A/2013 (Purushottamdas Agrawal v. Mohanlal Khetan) the consequential pleadings be allowed to be introduced in the plaint by way of amendment. It is submitted by learned counsel for petitioner/plaintiff that once the trial court allowed the documents to be brought on record by invoking Order VII Rule 14(3) CPC, which forms the subject matter of the amendment proposed by the plaintiff, the trial court ought to have allowed the application u/O VI Rule 17 CPC instead of rejecting the same. 3. Learned counsel for the respondent No.1/defendant on the other hand inviting attention of this court to the prayer clause to the plaint vide P/2 submits that a decree has been sought by the plaintiff of mandatory injunction against defendant No. 1/respondent No. 1 herein that respondent No. 1 be restrained by way of direction from depositing the rent of the accommodation in question to the defendant No. 2 [respondent No. 2(A) & 2 (B) herein] of Rs. 3,000/- per month and instead deposit the same with the trial Court. 3.1 In this background, learned counsel for the respondent No.1 submits that the trial Court has already passed the interlocutory order dated 2.2.2010 in favour of the plaintiff which is subsisting till date and in this view of the matter, the plaintiff/petitioner herein has adopted all possible means to delay the proceedings in the trial by adopting dilatory tactics by repeatedly filing frivolous interlocutory applications, the latest being the present application for amendment u/O VI Rule 17 CPC. It is further submitted by learned counsel for the respondent No. 1 that as per Order VI Rule 2 CPC only material facts are to be considered and not the evidence. It is further submitted by learned counsel for the respondent No. 1 that as per Order VI Rule 2 CPC only material facts are to be considered and not the evidence. It is submitted that plaintiff intended to bring evidence on record by invoking Order VI Rule 17 CPC which cannot be permitted in terms of the verdict of Apex Court in Bharat Singh & others v. State of Haryana & others ( AIR 1988 SC 2181 ) and of the Division Bench of this court in Trivenidevi Naraindas v. Vijay Mohan Bose reported in 1976 MPLJ 163 . It is further pointed out that despite the Division Bench of this court having directed by order dated 19.1.2011 in W.P.No. 997/20190 (Vimal Chand Jain v. Purushottam Agarwal & others) to conclude the trial in question within a period of 6 months, the trial continues to be pending even today solely due to dilatory tactics adopted by the plaintiff/petitioner herein. 3.2 Bare perusal of the impugned order reveals that the trial court while dismissing the application for amendment assigned reason that amendment was not necessary for proper and effective decision of the suit and also that the same would lead to further delay in trial and that subject matter of the amendment is already on record as pleadings and that the decree dated 1.12.2015 in C.S.43-A/2013 may not be of relevance to the cause raised in the suit in question. The trial Court has also assigned the reason of failure of plaintiff to demonstrate that despite exercise of due diligence amendment could not be brought forth earlier. 3.3 Bare perusal of the application u/O VI Rule 17 CPC reveals that proposed pleadings sought to be inducted by way of amendment are such which are either in same form or other part of the original pleadings and also that the said application u/O VI Rule 17 CPC does not disclose the crucial question as to why the said amendment could not be brought forth before commencement of trial. 3.4 The pre-condition for successfully invoking Order VI Rule 17 CPC after commencement of trial (which is the case herein) is that despite exercise of due diligence the party seeking to amend the pleadings could not have done so prior to commencement of the suit. 3.4 The pre-condition for successfully invoking Order VI Rule 17 CPC after commencement of trial (which is the case herein) is that despite exercise of due diligence the party seeking to amend the pleadings could not have done so prior to commencement of the suit. In the instant case, the plaintiff failed to show that despite exercise of due diligence, the subject matter of amendment could not be introduced earlier and therefore dismissal of the application for amendment by the trial Court cannot be found fault with. 3.5 Merely because another view is possible is not a good ground to exercise u/Art. 227 of the Constitution as held by the Apex Court in the case of Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC 329 followed in Jacky v. Tiny @ Antoni & others reported in 2014 (6) SCC 508 . 3.6 Accordingly, the petition fails and is dismissed. 3.7 It seems from the record that the suit has been pending since last 10 years and could not be decided despite direction for deciding the same within six months by Division Bench of this Court passed as early as in 2011 . 3.8 In this view of the matter, the trial court is directed to conclude the trial as expeditiously as possible latest by 31.12.2019 and in case any party is found to adopt dilatory tactics then heavy cost be imposed. 4. With this direction, the petition stands dismissed, sans cost.