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Madhya Pradesh High Court · body

2021 DIGILAW 179 (MP)

Kamal Giri v. Narrotam

2021-02-19

G.S.AHLUWALIYA

body2021
DECISION : Gurpal Singh Ahluwalia, J. 1. This petition under Article 227 of the Constitution India has been filed against the order dated 14.8.2018 passed by Civil Judge class I, Vijaypur, District Sheopur in Case No. 25-A/17 by which the application filed by the petitioners under Order 6 Rule 17 CPC has been rejected. 2. The necessary facts for disposal of the present petition in short are that the petitioners have filed a suit for Declaration of Title and Permanent Injunction. The suit was instituted on 27.2.2010. Thereafter, issues were framed on 16.4.2011 and the case was fixed for 23.6.2011 for examination of plaintiffs/petitioners witnesses. From the impugned order, it is clear that on 7.7.2011, 3.8.2011, 19.8.2011, 10.8.2011 and 10.11.2011, the case was fixed for plaintiffs' evidence, however the witnesses were not examined and accordingly the case was fixed for 7.12.2011, but on the said date neither the plaintiffs nor their witnesses were present, accordingly the suit was dismissed in default. Thereafter, MJC. No. 1/12 was filed for restoration of civil suit which was allowed by order dated 16.11.2017 and the suit was restored to its original file. Thereafter, once again the case was fixed for recording of plaintiffs' evidence on 24.4.2018, 7.5.2018, 14.5.2018, 18.6.2018 and 4.7.2018. Thereafter, on 9.7.2018 an application under Order 6 Rule 17 CPC was filed for amendment in the plaint on the ground that the petitioners have been dispossessed by respondents Nos. 1 and 2 on 31.12.2011 from the disputed land except Survey No. 917, and accordingly it was prayed that the decree of possession be passed in favour of the petitioners in respect of the disputed land except Survey No. 917 area 0.073 hectares. 3. The respondents Nos. 1 and 2 filed their reply and objected to the application for amendment and prayed that there is no document in support of their contention that they were dispossessed on 31.12.2011. 4. By the impugned order, the trial court has rejected the application filed by the petitioners on the ground of delay. 5. Challenging the impugned order passed by the Court below, it is submitted by the Counsel for the petitioners that no prejudice has been caused to respondents nos. 1 and 2 due to delayed filing of the application under Order 6 Rule 17 CPC. 5. Challenging the impugned order passed by the Court below, it is submitted by the Counsel for the petitioners that no prejudice has been caused to respondents nos. 1 and 2 due to delayed filing of the application under Order 6 Rule 17 CPC. It is further submitted that commencement of trial under Order 6 Rule 17 CPC must be understood in the wider sense. It is submitted that in the present case not a single witness of the plaintiffs/petitioners has been examined, therefore it is clear that trial has not commenced and, therefore, the trial Court was unjustified in rejecting the application filed under Order 6 Rule 17 CPC. It is further submitted that party can not be levied a just relief because of some mistake, negligence, inadvertence on the part of himself or his counsel. 6. Per contra, it is submitted by the counsel for respondents Nos. 1 and 2 that the solitary attempt of the plaintiffs was to avoid recording of evidence which is clear from the previous conduct also. On earlier occasion, the suit was dismissed for want of prosecution as the plaintiffs had not examined their witnesses in spite of the fact that multiple opportunities were given to them. Even after restoration of the suit the conduct of the plaintiffs did not improve and again took more than nine months to move an application for amendment in spite of the fact that on multiple occasions the case was listed for recording of evidence. 7. Heard the learned counsel for the parties. Order 6 Rule 17 CPC reads as under: "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" 8. From the plain reading of Order 6 Rule 17 CPC, it is clear that amendment is also prohibited after commencement of trial provided the court comes to the conclusion that in spite of due diligence, the parties could not have raised the matter before the commencement of trial. 9. If the facts of this case are considered, then it is clear that multiple opportunities were given to the petitioners to lead their evidence and ultimately on 7.12.2011 neither the petitioners nor their witnesses were present, accordingly the suit was dismissed for want of prosecution. Thereafter, the application for restoration of civil suit was filed which was allowed by order dated 16.11.2017 and again the case was fixed for recording of plaintiffs' evidence on six occasions and only thereafter on 9.7.2018, the application under Order 6 Rule 17 CPC was filed alleging that the petitioners have been dispossessed by them on 31.12.2011 from the property in dispute, except Survey No. 917 on 31.12.2011. Respondents Nos. 1 and 2 have not accepted that the petitioners were dispossessed. On the contrary, they have specifically denied this fact in the reply and have also submitted that no documentary evidence in this regard has been placed on record. It is true that according to the petitioners themselves they were dispossessed during the pendency of the application for restoration of civil suit. But even after the suit was restored, the application for amendment was not filed immediately inspite of the fact that by that time the petitioners were already dispossessed, and they were aware of the said fact on 16.11.2017 i.e. the date on which suit was restored. The supreme court in the case of Baldev Singh & others v. Manohar Singh & Others reported in (2006) 6 SCC 498 has held as under:- "17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure 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. As noted herein before, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement any stage of the proceedings". 10. If the facts of this case are considered in the light of law laid down by the Supreme Court in the case of Baldev (Supra), the contention of the counsel for the petitioners that since not a single witness of the petitioners has been examined therefore trial has not commenced is misconceived and cannot be accepted. From the reading of the impugned order, it is clear that the case was fixed for recording of evidence of plaintiffs for the first time on 23.6.11 and various opportunities were granted, however, when the plaintiffs and their witnesses did not appear before the trial Court on 7.12.2011, then the suit was dismissed for want of prosecution. Even after the restoration of civil suit, the case was once again fixed for examination of plaintiffs' witnesses on 24.4.2018, 7.5.2018, 14.5.2018, 18.6.2018 and 4.7.2018 and on these dates also the plaintiffs did not examine their witnesses. Commencement of trial is not dependent upon the mercy of the parties. Once the suit had already reached to the stage of recording of plaintiffs' witnesses, then it cannot be said that the Suit had not commenced. In spite of multiple opportunities if the plaintiff failed to examine his witnesses, then it cannot be said that the trial had not commenced. In fact the trial had already commenced but it was the plaintiffs who were are not interested in examining their witnesses. 11. In spite of multiple opportunities if the plaintiff failed to examine his witnesses, then it cannot be said that the trial had not commenced. In fact the trial had already commenced but it was the plaintiffs who were are not interested in examining their witnesses. 11. The counsel for the petitioner has relied upon judgment passed in the case of Mahila Ramkali Devi & others v. Nandram (D) Thr. Lrs & others reported in AIR 2015 SC 2270 in which it has been held as under:- "20. It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The Court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost". 12. If the facts of this case are considered in the light of the law laid down by the Supreme Court in the case of Mahila Ramkali Devi (Supra), then it is clear that if the Court is satisfied that the party applying had acted malafide or by his burden he has caused injury to his opponent, which cannot be compensated by an order of Court then the application cannot be allowed. If the facts of this case are considered, then it is clear that the petitioners were acting mala fides in the suit by not examining their witnesses in spite of various opportunities which were being given by the trial Court coupled with the fact that because of such conduct the petitioners had already suffered dismissal of their suit for want of prosecution on one occasion. It is submitted by the counsel for the petitioners that since the petitioners have not committed any blunder therefore the respondents can be compensated in terms of money by payment of cost. 13. Considered the submissions made by the counsel for the petitioners. 14. It is submitted by the counsel for the petitioners that since the petitioners have not committed any blunder therefore the respondents can be compensated in terms of money by payment of cost. 13. Considered the submissions made by the counsel for the petitioners. 14. As already pointed out, that the suit was listed for the first time for examination of witnesses on 23.6.2011 and continued for the said purpose till 7.4.2012 and on the said date neither the plaintiffs nor their witnesses were present, accordingly suit was dismissed for want of prosecution. Again respondents were compelled to face proceedings for restoration of suit which culminated on 16.11.2012 in favour of the petitioners. Thereafter, again petitioners did not examine their witnesses till 4.7.2018. By no stretch of imagination it can be said that there was no blunder on the part of the petitioners thereby causing injury to their opponents. The respondents Nos. 1 and 2 have been compelled to face the ordeal of trial without any progress due to non cooperative attitude of the plaintiffs and this injury cannot be compensated even in terms of money. 15. Considering the facts and circumstances of the case from every angle, this Court is of the considered opinion that trial Court did not commit any jurisdictional error in rejecting the application under Order 6 Rule 17 by it's order dated 14.8.2018. 16. Accordingly petition fails and is hereby dismissed. 17. Interim order granted on earlier occasion is hereby vacated. 18. The parties are directed to appear before the trial Court on 10th of March, 2021 for further proceedings.