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2019 DIGILAW 611 (MP)

Padam Chand Jain v. Mahaveer Prasad Jain

2019-08-27

VISHAL MISHRA

body2019
ORDER 1. The present petition has been filed challenging the order dated 17.5.2019 passed in Civil Suit No. 1A/2013 whereby the application filed under Order 6 rule 17 of CPC for amendment in the plaint owing to a subsequent development and change in the circumstances have been rejected by the learned trial Court without considering the aspect that the same is contrary to law and owing to the subsequent development and changes the application should have been allowed. 2. It is alleged by the counsel for the petitioners that a civil suit for declaration and permanent injunction was filed before the trial Court on the count that the plaintiffs and defendants are members of joint Hindu family and family was governed under the Mitakshara Hindu Law KE Banaras School. It is submitted by the counsel for the petitioners that the civil suit was filed wherein the learned trial Court vide its judgment and decree dated 24.12.2004 has dismissed the suit of plaintiffs. An appeal was preferred against the judgment and decree dated 24.12.2004 which was registered as First Appeal No. 36-A/05 and the lower appellate Court vide its judgment and decree dated 5.3.2005 has set aside the judgment and decree passed by the learned trial Court and the suit was decreed in favour of the petitioners. A second appeal was preferred which was registered as Second Appeal No. 451/2005 and the second appeal was finally heard and decided by the Hon'ble High Court on 8.9.10 and the judgment and decree passed by the learned first appellate Court was set aside and the matter was remanded back to the appellate Court for hearing on merits. The first appellate Court after rehearing of the first appeal has passed the judgment and decree dated 12.12.2012 and has remanded the matter back to the trial Court for the reason that sisters being a daughter of late Shri Badri Prasad are necessary and proper party to the present case as Anguri Devi was not impleaded as a party therefore the matter was remanded for impleading Anguri Devi and sisters as a party with a direction to permit them to lead evidence and thereafter decided the civil suit on merits. In pursuance to the aforesaid remand order the civil suit is still pending before the trial Court. In pursuance to the aforesaid remand order the civil suit is still pending before the trial Court. An application under Order 1 rule 10 was filed before the trial Court which was allowed by the trial Court on 7.12.2018 and thereafter the written statement was filed by the newly added parties and the matter was fixed for hearing on 28.1.2019. The newly added parties have filed the written statement and a counter claim on 23.3.2019. Thereafter, an application under Order 6 rule 17 was filed for amendment in the plaint in view of the changed circumstances as the newly added defendants have filed the counter claim against the plaintiff. It was alleged that the amendment is required in the plaint in the changed circumstances as certain documents filed by the newly added defendants are required to be countered. The learned trial Court after due consideration of the application and hearing the arguments has rejected the same for the reasons that the plaintiff was having the knowledge of the facts which are proposed to be amended from the very beginning but he has not chosen to incorporate the aforesaid in the plaint memo. It was further observed by the trial Court that in response to the counter claim filed by the defendants, the plaintiff has mentioned all these facts in their response. Therefore, once the aforesaid facts are already placed before the Court in reply to the counter claim filed by the defendants there is no requirement of repetition of the aforesaid by way of amendment in the plaint. Accordingly, finding the amendment not useful in the plaint the learned trial Court has rejected the application vide its order dated 17.5.2019. Counsel for the petitioners has submitted that the aforesaid order is per se illegal and contrary to the settled position of law. He has relied upon the judgment passed in the cases of Vijay Hathising Shah and another v. Gitaben Parshottamdas Mukhi and others, reported in 2019 (5) SCC 360 and Gurbakhsh Singh v. Buta Singh and another, reported in 2019 (1) MPLJ 269 and has prayed for setting aside of the impugned order and allowed the application filed by the plaintiffs. 3. Per contra the counsel appearing on behalf of the respondents has contended that the order impugned is rightly being been passed and does not call for any interference under Article 227 of the Constitution of India. 3. Per contra the counsel appearing on behalf of the respondents has contended that the order impugned is rightly being been passed and does not call for any interference under Article 227 of the Constitution of India. He has further contended that the learned trial Court has observed that the verbatim of the proposed amendment and that of the reply to the counter claim are exactly identical, therefore, the learned trial Court has rightly observed that the same will amount to the repetition of the facts which have already been brought before this Court. The learned trial Court has observed that the proceedings of both the matters will run simultaneously. Therefore, once the aforesaid facts have already been brought on record by way of reply to counter claim there is no requirement of amendment in the plaint. It is further contended that the aforesaid facts were very well in the knowledge of the plaintiff from the very beginning but he has chosen not to incorporate the same in the plaint memo. Thus, the same will not create any difference in the evidence. Accordingly, the learned trial Court was justified in rejecting the application. He has prayed for dismissal of the writ petition. 4. Heard the learned counsel for the parties and perused the record. 5. It is an admitted position that in the earlier round of litigation the suit was decreed and the matter has travelled upto the Hon'ble High Court. The Hon'ble High Court in Second Appeal No. 451/2005 has allowed the appeal and has remanded the matter back to the first appellate Court for rehearing on merits vide its judgment dated 8.9.10. After the remand of the case to the first appellate Court the first appellate Court has also remanded the matter back to the trial Court vide its judgment dated 12.12.2012. The learned first appellate Court has remanded the matter with a direction to the trial Court for impleadment of necessary parties to the civil suit. On the basis of the remand order an application under Order 1 rule 10 CPC was filed which was allowed and Anguri Devi and sisters were impleaded as parties to the suit being necessary parties, thereafter they have filed their separate written statement alongwith the counter claim. On the basis of the remand order an application under Order 1 rule 10 CPC was filed which was allowed and Anguri Devi and sisters were impleaded as parties to the suit being necessary parties, thereafter they have filed their separate written statement alongwith the counter claim. The reply to the counter claim was filed by the petitioners along with an application under Order 6 rule 17 for praying amendment in the plaint owing to the subsequent development. The application was rejected by the trial Court. 6. The provision of Order 6 rule 17 are required to be seen. "Amendment of pleadings- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 7. The Hon'ble Supreme Court in the case of Abdul Rehman and another v. Mohd. Ruldu and ors, reported in (2012) 11 SCC 341 has held as under : "11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case." 8. In the case of Gurbakhsh Singh (supra), the Hon'ble Supreme Court considering the case of Abdul Rehman (supra) has held as under : "The High Court was of the view that Proviso to Order 6 rule 17 of the CPC, as duly amended, laid down that once the trial had commenced, no amendment could be allowed unless the Court were to come to the conclusion that the party could not have raised the matter before the commencement of the trial despite due diligence. "6. In the present case the record of Civil Suit No. 195 of 1968 in which ex parte decree was passed on 30.6.1969 is not traceable. In the circumstances, there could possibly be some inability in obtaining correct particulars well in time on part of the appellants. At the time when the application for amendment was preferred, only two official witnesses were examined. The nature of amendment as proposed neither changes the character and nature of the suit nor does it introduce any fresh ground. The High Court itself was conscious that the amendment would not change the nature of the suit. In the given circumstances, in our view, the amendment ought to have been allowed. In any case it could not have caused any prejudice to the defendants. 9. From the perusal of the aforesaid law laid down by the Hon'ble Supreme Court and the provision of Order 6 rule 17, the amendment on the basis of the subsequent development was a material amendment and the application filed for the same should have been allowed by the learned trial Court. 9. From the perusal of the aforesaid law laid down by the Hon'ble Supreme Court and the provision of Order 6 rule 17, the amendment on the basis of the subsequent development was a material amendment and the application filed for the same should have been allowed by the learned trial Court. In the present case as the new parties were added as defendants and they have filed their written statements and counter claim. The learned trial Court has permitted the counter-claim but has refused the application for amendment in plaint. Once the counter-claim was permitted then there was no occasion for the trial Court for refusing the amendment application, as evidence will be required to be lead by the parties on the basis of the pleadings. If there will be no pleadings it will be objected by the defendants at the time of evidence. By the aforesaid amendment no prejudice will be caused to the defendants. 10. Considering the aforesaid preposition of law laid down by the Hon'ble Supreme Court and the fact that owing to the subsequent development and impleadment of necessary parties who have subsequently filed their separate written statement the plaintiff was justified in filing an application under Order 6 rule 17 CPC for proposing amendment in the plaint memo. Accordingly, the order passed by the learned trial Court is set aside. The application filed under Order 6 rule 17 CPC by the plaintiff is hereby allowed and he is directed to incorporate the aforesaid amendment in the memo of plaint. 11. Accordingly, the writ petition is allowed. No order as to cost.