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2019 DIGILAW 836 (MP)

SARVESHVAR v. SUKHDEV

2019-11-30

PRAKASH SHRIVASTAVA

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ORDER/JUDGMENT – Shri A. S. Garg, learned senior counsel with Ms. Megha Jain, learned counsel for the petitioners. Shri B. I. Mehta, learned senior counsel with Shri J. B. Mehta, learned counsel for the respondents. Heard finally with consent. 2. By this miscellaneous petition under Article 227 of the Constitution, the plaintiffs in the suit have challenged the order of the trial Court dated 20-6-2018, whereby the application filed by the respondents (defendants No. 3 and 4) under Order 6, Rule 17 of the Civil Procedure Code for amendment of the written statement has been allowed. 3. Learned counsel appearing for the petitioners submits that after the remand new case cannot be introduced by the respondents and that there was a limited remand by this Court and the Will which the respondents are trying to introduce, is a forged document and section 8 of the Hindu Succession Act (for short “the Act”) is attracted when male Hindu dies ‘intestate’, therefore, in terms of the remand order the question of introducing the Will does not arise. 4. As against this, learned counsel for the respondents has supported the impugned order by submitting that on account of the death of Sukhdev subsequently the question of Will has arisen and that the trial Court has not committed any error in passing the impugned order. 5. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the trial Court had earlier decreed the suit by the judgment dated 16-3-2000, which came to be challenged by the respondents by filing the First Appeal No. 238/2000. This Court by the judgment dated 31-1-2018 had reached to the conclusion that the two daughters of Sukhdev were not impleaded as party and that Sukhdevand Yashodabai w/o Sukhdev had died during the pendency of appeal. This Court had also taken note of the legal position as reflected in the judgment of the Supreme Court in the case of Uttam vs. Saubhag Singh, reported in AIR 2016 SC 1169 and in this background the appeal was allowed, the judgment and decree of the trial Court was set aside and the matter was remanded back to the trial Court to decide the suit afresh within a time bound period. After the remand the respondents (defendants No. 3 and 4) had filed the application for amendment of the written statement with the plea that Sukhdev had executed the Will dated 5-3-1998 in their favour, therefore, seeking amendment in the written statement and incorporating the plea relating to the Will. 6. While passing the impugned order the trial Court has duly considered the respective plea of the parties and has assigned just and proper reasons for allowing the prayer for amendment in the written statement. The trial Court has taken note of the fact that parties are claiming the properties of Sukhdev. The trial Court has also taken note of the fact that Sukhdev has died, therefore, all the relevant circumstances after the death of Sukhdev are required to be looked into. In respect of the objection on merit of the plea raised in the amendment application, the trial Court has rightly noted that the merits of the amendment cannot be looked into at this stage. 7. The view which is taken by the trial Court is duly supported by the judgment of the Supreme Court in the matter of Usha Devi vs. Rijwan Ahmad and others, reported in AIR 2008 SC 1147 , wherein it has been held that the merits of amendment is hardly a relevant consideration while allowing the application for amendment. Similarly the Supreme Court in the matter of Raj Kumar Bhatia vs. Subhash Chander Bhatia, reported in AIR 2018 SC 100 has held that : – “11. This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. In Sadhna Lodh vs. National Insurance Company, this Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior Court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an Appellate Court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior Court or tribunal has passed an order. The trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6, Rule 17 of the Civil Procedure Code. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21 September, 2013 that an amendment of the plaint was allowed by the trial Court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the plaintiff.” 8. The order of remand passed by this Court was not a limited remand order but by that order the trial Court was directed to decide the suit afresh. The plea of the petitioner that the alleged Will is a forged document, cannot be examined at this stage since it is a matter of evidence which may be led by the parties during the trial of the suit. The amendment has been sought on account of the subsequent development of death of Sukhdev and the alleged Will executed by him. Section 8 of the Act is attracted in case when the male Hindu dies intestate, therefore, the respondent cannot be restrained from amending the written statement on the basis of the Will, which may be a relevant factor for determining the applicability of section 8. 9. Section 8 of the Act is attracted in case when the male Hindu dies intestate, therefore, the respondent cannot be restrained from amending the written statement on the basis of the Will, which may be a relevant factor for determining the applicability of section 8. 9. Counsel for the petitioners has placed reliance upon the judgment of this Court in the matter of Rameshwar Dayal Khandelwal vs. Dr. Bhagwandas, reported in 1986(2) MPWN Note No. 56 and in the matter of Rajaram vs. Vithabai and others, reported in 1990 JLJ 71 and in the matter of Shankarlal vs. Union of India, reported in 1969 M.P.L.J. Note No. 46 in support of his plea that the trial Court cannot travel beyond the remand order but in the present case as per the facts reflected above, the trial Court has not travelled beyond the remand order. Counsel for the petitioner has also placed reliance upon judgment of the Supreme Court in the matter of State of M. P. and others vs. D. K. Jadhav (Sardar), reported in 1972 M.P.L.J. 349 but in the present case the amendment has been proposed on account of the subsequent development. 10. In view of the aforesaid, I am of the opinion that the trial Court has not committed any patent illegality in passing the impugned order. That apart, this Court is exercising the limited supervisory jurisdiction under Article 227 of the Constitution. The Supreme Court in the matter of Jai Singh and others vs. Municipal Corporation of Delhi and another, reported in (2010) 9 SCC 385 while considering the scope of interference under Article 227 of the Constitution, has held that the jurisdiction under Article 227 cannot be exercised to correct all errors of judgment of a Court, or tribunal acting within the limits of its jurisdiction. Correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 11. Hence, no case for interference in the impugned order of the trial Court is made out. The miscellaneous petition is accordingly dismissed. C.C. as per rules.