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2019 DIGILAW 821 (MP)

NEETUMAL v. DHANVATI @ DWARIKA

2019-11-23

G.S.AHLUWALIA

body2019
ORDER/JUDGMENT – Shri Sanjay Sharma, learned counsel for the petitioner. Shri Harish Dixit, learned counsel for the respondents. 2. This petition under Article 227 of the Constitution of India has been filed against the order dated 19-9-2019 passed by Civil Judge, Class-I, in Civil Suit No. 4A/2011, by which application under Order 6, Rule 17 of Civil Procedure Code filed by the petitioner has been rejected. 3. The necessary facts for disposal of this petition in short are that father of petitioner Late Shri Hariram Balecha filed a civil suit for declaration of right and permanent injunction against the respondents. The civil suit filed by the father of petitioner was dismissed by the trial Court by judgment decree dated 28-9-2013 against which the present petitioner filed an appeal which was registered as RCA No. 600079A/2015. In the said appeal, petitioner had filed an application under Order 6, Rule 17 of Civil Procedure Code and application under Order 41, Rule 27 of Civil Procedure Code seeking amendment of the plaint on the basis of the Will and the copy of Will was also filed along with application under Order 41, Rule 27 of Civil Procedure Code. The appellate Court by order dated 12-7-2019 considered the application under Order 6, Rule 17 of Civil Procedure Code as well as application under Order 41, Rule 27 of Civil Procedure Code and after considering the direction given by this Court in W. P. No. 2356/2016 allowed the application under Order 41, Rule 27 of Civil Procedure Code and took the documents on record. However, it appears that by mistake the application under Order 6, Rule 17 of Civil Procedure Code which was filed for amendment in the plaint, was not decided and the matter was remanded back to the trial Court for fresh adjudication as expeditiously as possible. It is not out of place to mention here that the respondents have filed MA. No. 4816/2019 against the order of remand and according to the learned counsel for the respondents, photocopy of the record of Courts below has been summoned. However, the notices have not been issued so far. 4. It is not out of place to mention here that the respondents have filed MA. No. 4816/2019 against the order of remand and according to the learned counsel for the respondents, photocopy of the record of Courts below has been summoned. However, the notices have not been issued so far. 4. It is submitted by the learned counsel for the petitioner that petitioner had also filed an application under Order 6, Rule 17 of Civil Procedure Code before the appellate Court and by order dated 12-7-2019, the appellate Court did not reject the said application, but it appears that due to oversight, the application could not be decided, although there is a reference of the said application in the order. It is further submitted that once the appellate Court had directed to take the documents on record which were filed along with the application under Order 41, Rule 27 of Civil Procedure Code then same cannot be considered unless and until there are pleadings in the plaint. Therefore, in order to avoid any complication, the petitioner had filed an application under Order 6, Rule 17 of Civil Procedure Code for amendment in the plaint, but the trial Court has rejected the same on the ground that amendment is not in accordance with the provisions of Order 6, Rule 17 of Civil Procedure Code as it has been filed belatedly and after the commencement of the trial. It is further submitted that the trial Court lost sight of the fact that once the appellate Court itself had taken the documents on record, then it becomes mandatory on the part of the plaintiff to amend the plaint because the application which was filed by him before the appellate Court remained undecided due to oversight. Under these circumstances, it is submitted that in the light of the order passed by the appellant Court on 12-7-2019, the trial Court should have allowed the amendment in the plaint. 5. Per contra, it is submitted the counsel for the respondents that this Court by order dated 27-3-2019 passed in W. P. No. 2356/2016 had granted permission to the plaintiff to file a separate suit and therefore, appellate Court committed the material illegality by taking documents on record and thus, the trial Court has rightly rejected the application filed under Order 6, Rule 17, Civil Procedure Code. It is further submitted that since the original suit was based on agreement and a Will executed in favour of the defendants was challenged, therefore, proposed amendment would change the nature of suit. 6. Heard the learned counsel for the parties. 7. Whether the proposed amendment would change the nature of suit or not, would not be material at this stage because the documents have already taken on record by the appellate Court by its order dated 12-7-2019. Once the documents have already been taken on record and because of oversight, if the appellate Court could not decide the application filed under Order 6, Rule 17 of Civil Procedure Code, then trial Court should have allowed the proposed amendment in the plaint. 8. Accordingly order dated 19-9-2019 passed by First Civil Judge Class- I, Vidisha in Civil Suit No. 4A/2011 is hereby set aside. The application filed by the petitioner for amendment in the plaint is hereby allowed and the petitioner shall incorporate the amendment within stipulated period so fixed by the trial Court and the defendants if they desire may also consequentially amend their pleadings. 9. Before parting with this order, this Court finds it appropriate to mention that the application filed by the petitioner under Order 6, Rule 17 of Civil Procedure Code has been allowed only on the ground that the appellate Court has already been taken the documents on record and under the facts and circumstances of the case, amendment in the plaint is necessary because the documents without any pleadings cannot be considered. However; the order dated 12-7-2019 by which the appellate Court had taken the documents on record and had remanded the matter back to the trial Court is already under challenge in M.A. No. 4816/2019. Thus, it is observed that this order shall be subject to the out come of the aforesaid M.A. 10. With the aforesaid observation, this petition is finally disposed of.