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Madhya Pradesh High Court · body

2022 DIGILAW 871 (MP)

Mohammad Ayyub Khan v. Nahru

2022-06-29

AMAR NATH KESHARWANI

body2022
ORDER 1. This miscellaneous petition under Article 227 of the Constitution of India has been filed by the petitioners/defendants No.5 & 6 being aggrieved by the impugned order dated 22.1.2020 passed by 4th Civil Judge, Senior Division, Mandsaur (M.P) in Civil Suit No.313A/2015, whereby the application under Order 6 Rule 17 CPC filed on behalf of the respondents No.1 & 2/plaintiffs to incorporate the additional pleadings in the plaint regarding the sale of the suit property by defendant No.1 & 2/respondent No.3 & 4 to the petitioner/defendants No.5 & 6 and after-sale of that suit property (house), the petitioner/defendant No.5 & 6 and defendants No.1 & 2, levelled the suit house by demolishing it, and in that levelled land, the plaintiffs/respondents No.1 & 2 has the title, therefore, it is necessary to partition the suit land and relief of partition be allowed. 2. The brief facts of the case are that the respondents No.1 & 2/plaintiffs have filed a civil suit before the learned trial Court for declaration of their share in the suit property and permanent injunction against the defendants No.1 & 2 for not alienating the suit property without partition and consent of plaintiffs and to not deliver the possession to anyone and to pass mandatory injunction against defendants No.3 & 4 to restrain them from registration of sale deed of the suit property. 3. During the trial, the respondents No.1 & 2/plaintiffs have filed an application under Order 6 rule 17 CPC to amend the plaint to the effect that during the pendency of the suit, the respondents No.1 & 2 have sold the suit property to respondents No.5 & 6 and executed the sale deed, and after execution of the sale deed, the defendants No.1 & 2 & 5 & 6 with an intent to destroy the title of the plaintiffs in the suit property, levelled the suit house by demolishing it. Therefore, it is necessary to partition the suit land on which the suit house was situated. The plaintiffs and the defendants No.1 & 2 or 5 and 6 have equal rights and share in the suit property. 4. Therefore, it is necessary to partition the suit land on which the suit house was situated. The plaintiffs and the defendants No.1 & 2 or 5 and 6 have equal rights and share in the suit property. 4. Reply of amendment application was filed on behalf of petitioners/defendants No.5 & 6 and denied the averments made in the application and stated that the case was fixed for evidence and last opportunity was given, but since the witness was not present on the date fixed by the Court, therefore with intent to cause delay an application under Order 6 rule 17 of the CPC was filed and if the present amendment is allowed, then the nature of the suit will be changed, so prayed for dismissal of amendment application. 5. The trial Court has allowed the said application by the impugned order, against which the petitioners have filed the present petition before this Court. 6. Learned counsel for the petitioners submits that the impugned order passed by the trial Court is against the law and procedure since after the proposed amendment in the plaint, the nature of the suit will be changed, therefore, the trial Court has committed grave error while allowing the said application, hence prayed for setting aside the impugned order. 7. Learned counsel for the respondent submits that the trial Court has not committed any illegality or perversity while passing the impugned order and the impugned order is as per law, therefore, no interference is called for in this petition. 8. I have heard learned counsel for the parties and perused the annexures filed along with the petition. 7. Learned counsel for the respondent submits that the trial Court has not committed any illegality or perversity while passing the impugned order and the impugned order is as per law, therefore, no interference is called for in this petition. 8. I have heard learned counsel for the parties and perused the annexures filed along with the petition. The relief clause of the civil suit is reproduced below :-- ¼v½ fMØh ?kks"k.kk dh oknhx.k ds i{k esa bl vk'k; dh iznku djus dh d`ik djsa fd yscj dkWyksuh] ubZ vkcknh eUnlkSj fLFkr Hkou Øekad 114 ¼,d lkS pkSng½ ftldk fooj.k okn pj.k&2 ¼nks½ esa fn;k x;k gS] esa oknhx.k dk ,oa izfroknh Øekad 1 ¼,d½ o 2 ¼2½ nks dk leku LoRo gSA ¼c½ fMØh LFkkbZ fu"ks/kkKk dh bl vk'k; dh iznku djus dh d`ik djsa fd izfroknh Øekad 1 ¼,d½ o 2 ¼nks½ yscj dkWyksuh] ubZ vkcknh] eUnlkSj fLFkr Hkou Øekad 114 ¼,d lkS pkSng½ ftldk fooj.k okn pj.k&2 ¼nks½ esa fn;k x;k gS] dk fcuk fof/kor c¡Vokjk djk, ,oa fcuk oknhx.k dh lgefr ds foØ; vFkok vU;Fkk vUrj.k ugha djsa u gh mldk vkf/kiR; fdlh vU; dks nsaA ¼l½ fMØh vkns'kkRed fu"ks/kkKk dh izfroknh Øekad 3 ¼rhu½ o 4 ¼pkj½ ds fo:) bl vk'k; dh iznku djus dh d`ik djsa fd os izfroknh Øekad 1 ¼,d½ o 2 ¼nks½ dks fcuk vuqefr ,oa l{ke Lohd`fr ds yscj dkWyksuh] ubZ vkcknh] eUnlkSj fLFkr Hkou Øekad 114 ¼,d lkS pkSng½ dk foØ; djus ls jksdsa o foØ;&i= dk iath;u ugha djsaA ¼n½ oknhx.k dks okn&O; izfroknhx.k ls fnyk;k tkosA ¼b½ vU; lgk;rk tks okn&i= ds Lo:i ls mfpr gks oknhx.k ds fgr esa iznku djus dh d`ik djsaA The proposed amendments which are allowed by the trial Court by the impugned order are reproduced below: ^^12¼v½ ysfdu izfroknh Øekad 1 o 2 us bl okn ds nkSjku fookfnr edku izfroknh Øekad 5 o 6 dks foØ; dj fn;k gS rFkk foØ; ds ckn izfroknh Øekad 1] 2 o 5 ,oa 6 us fookfnr edku esa oknhx.k dk LoRo u"V djus ds vk'k; ls edku dks yxHkx 2 ekg iwoZ fxjkdj lery dj fn;k gS blfy, ftl Hkwfe edku cuk gqvk Fkk ml Hkwfe dk cVokjk fd;k tkuk vko';d gSA^^ At the end of para-20(a) of the plaint ^^rFkk okn pyus ds nkSjku izfroknh Øekad 1] 2 o 5 ,oa 6 }kjk edku fxjkdj Hkwfe lery dj nh xbZ gSA blfy, ml IykWV esa Hkh oknhx.k ,oa izfroknh Øekad 1 o 2 ;k izfroknh Øekad 5 o 6 dk leku gd ,oa fgLlk gSA^^ The operative part of the impugned order is reproduced as below : ^^izdj.k ds voyksdu ls Li"V gS fd oknh us O;Dr fd;k gS fd okn ds yafcr jgus ds nkSjku izfroknhx.k }kjk edku dks fxjkdj lery dj fn;k x;k gS ,slh fLFkfr esa izLrqr okn esa caVokjs dh lgk;rk izkIr fd;k tkuk vko';d gSA caVokjs ds laca/k esa oknh }kjk vius okni= esa lgk;rk pkgh gS ftlds laca/k esa okn iz'u dh fojpuk dh xbZ gS ,slh fLFkfr esa pkgs x, la'kks/ku ls okn ds Lo:i esa ifjorZu ugha gksrk gSA izdj.k esa lkf{k;ksa dk ijh{k.k gksuk 'ks"k gS ,slh fLFkfr esa pkgs x, la'kks/ku ds laca/k esa lkf{k;ksa ds ijh{k.k djus dk mHk;i{k dks i;kZIr volj izkIr gSA vr% vkosnu i= Lohdkj dj oknh dks funsZf'kr fd;k tkrk gS fd og vkosnui= esa mYysf[kr la'kks/ku dks rhu fnol esa lekfo"V dj izekf.kr djkosA izfroknh mDr la'kks/ku ds ifj.kkeLo:i dksbZ la'kks/ku vius oknksRrj esa djuk pkgrk gS] rks vius bl vk'k; dk fyf[kr esa vkosnu is'k djsaA^^ 9. It is pertinent to mention here that the petitioners are already impleaded in the suit as defendants No.5 & 6 and the petitioners have filed the written statement before the trial Court and they have pleaded that they have purchased the suit house from defendants No.1 & 2 by registered sale deed executed on 17.3.2005 and got the possession of suit property. 10. The petitioners have raised the issues regarding the maintainability of the suit on the ground of res judicata and other legal points. The issues which were framed by the trial Court are not filed before this Court by either party. Order 6 rule 17 of the CPC provides that :-- "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." 11. Since during the trial of the suit property, the property was sold by the defendant No.1 & 2, and purchasers were incorporated in the suit and the written statement was filed by them, resulting in the proposed amendments which arose by the subsequent events. Therefore, in light of the facts and circumstances of the case, the trial Court has not committed any illegality in passing the impugned order. Therefore, this petition has no substance and is hereby dismissed. 12. Since it is the second round of litigation, therefore, looking at the facts and circumstances of the case, the trial Court is directed to first decide the issues regarding the maintainability of the suit on the point of res judicata and other legal points which were raised by the defendants. If the trial Court has not framed issues regarding the maintainability of the suit on the ground of res judicata and other legal points earlier, then, issues be framed in that regard and decide as preliminary issues by giving the proper opportunity of hearing. Accordingly, this miscellaneous petition stands disposed of.