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2025 DIGILAW 368 (MP)

Mahila Vaso Ojha v. Mahila Bhande

2025-06-24

RAJENDRA KUMAR VANI

body2025
ORDER 1. This petition under Article 227 of the Constitution of India has been filed by the petitioner challenging the order dated 2.3.2024 (Annexure P1), whereby the learned Trial Court has allowed an application filed by respondent No.1/plaintiff under Order 6 rule 17 read with section 151 of the Code of Civil Procedure, for amendment in the plaint. 2. It is submitted by the learned counsel for the petitioner that the learned trial Court has erred in allowing the application for amendment vide impugned order dated 2.3.2024, by overlooking the provisions of the proviso to Order 6 rule 17 of the CPC. The proviso specifically provides that no application for amendment shall be allowed after the commencement of the trial unless the Court comes to the conclusion that, despite due diligence, the party could not have raised the matter before the commencement of the trial. He relied upon the judgment of the Hon’ble apex Court in Vidyabai & Ors. v. Padmalatha & Anr. , 2009 (2) SCC 409 . He further submitted that an application for impleadment of defendant No.7 was filed on 4.7.2023, a copy of which has been appended as Annexure P3. Thereafter, the Court allowed the said application vide order dated 11.8.2023, and the impleadment was incorporated lateron, but at that time, no amendment to the pleadings was sought by the plaintiff/respondent. It is contended that the order passed by the learned trial Court is hit by the proviso to Order 6 Rule 17 of the CPC, and therefore, he prays that the impugned order dated 2.3.2024 be set aside. 3. Per contra, learned counsel for respondent No.1 submits that the learned Trial Court has considered the fact that although respondent No.7 had already been impleaded, but the relevant averments in relation thereto were not there in the plaint; therefore, the application for amendment has been allowed. It is contended that the learned Trial Court did not overlook the proviso to Order 6 rule 17 of the CPC. He relied upon the judgment passed by the Coordinate Bench of this Court in Sainik Grih Nirman Sahkari Samiti, Jabalpur v. M.P. Rajya Sahkari Awas Sangh Maryadit , 2019 (1) M.P.L.J. 571 , and Vallabh Electronics v. Branch Manager, United Bank of India, 2020 (1) M.P.L.J. 100 , and submitted that an application for amendment cannot be dismissed solely on the ground of delay. He further submitted that by allowing the application, no prejudice has been caused to the parties. Even after the evidence was over, the application was allowed in Sainik Grih Nirman Sahkari Samiti (supra). Accordingly, he prays for dismissal of the petition. 4. Heard learned counsel for the parties and perused the material available on record. 5. In the case of Vidyabai (supra), it has been held by the Hon'ble apex Court that courts can allow an amendment before the commencement of trial, but not thereafter. Filing of an affidavit in lieu of examination-inchief of the witness would amount to the 'commencement of proceedings'. The court has no jurisdiction to allow an application after the filing of such an affidavit. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. 6. In the case of Vallabh Electronics (supra), it has been held by the Coordinate Bench of this Court that mere delay cannot be a ground for rejection of an application for amendment, unless and until serious prejudice is caused to the defendants. 7. In the case of Sainik Grih Nirman Sahkari Samiti (supra), it has been held by the Coordinate Bench of this Court that if the evidence in trial has already concluded, but no prejudice would be caused to the parties by the amendment, such an application may be allowed with the understanding that no opportunity to lead additional evidence would be granted. 8. In the case of Mohinder Kumar Mehra v. Roop Rani Mehra and others, (2018) 2 SCC 132 , in paragraph 23, the Hon'ble apex Court has considered the object of the amendment made in Order 6, rule 17 of the CPC, which reads as under : 23. This Court in Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117 has noted the object and purpose of amendment made in 2002. In para 13, the following has been held: “13. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other's case. It also helps in checking the delays in filing the applications. In para 13, the following has been held: “13. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other's case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.” 9. Keeping in view the provisions of Order 6 rule 17 of the CPC, as well as the law laid down in the aforesaid cases, it is found that the plaintiff had earlier, on 4.7.2023, filed an application under Order 1 rule 10 CPC to implead Smt. Vaso Ojha w/o Vishnu Ojha as a defendant, as defendant No.3 – Nabbo had sold a part of the disputed land in favour of Smt. Vaso during the pendency of the suit, on 24.2.2023. At that time, no pleadings in respect of or against defendant Smt. Vaso could have been made. Though it was an omission on the part of the plaintiff, but since Smt. Vaso was impleaded in the suit as a defendant vide order dated 11.8.2023 by the learned trial Court, and it was revealed in that application that a part of the land had been sold in her favour during the pendency of the suit, therefore, the matter was revealed at that time to the parties to the lis and it was within the knowledge of both parties at that time. No new matter has been raised by the plaintiff through the application under Order 6 rule 17 of the CPC filed later on, dated 26.2.2024, by which the pleadings against Smt. Vaso (defendant No.7) have been proposed to be incorporated in the plaint. Since the proposed amendments were already within the knowledge of the parties at the time of impleading Smt. Vaso as defendant No.7, the proposed amendment is explanatory in nature. Since the proposed amendments were already within the knowledge of the parties at the time of impleading Smt. Vaso as defendant No.7, the proposed amendment is explanatory in nature. No new matter has been raised by the plaintiff. Therefore, the proposed amendment is not in violation of the proviso to Order 6 rule 17 CPC. It is also pertinent to mention that only one witness, the plaintiff herself, has been examined as a plaintiff witness. The remaining evidence on behalf of the plaintiff is yet to be led, and the defendant also has the right to adduce evidence. Therefore, no prejudice has been caused to plaintiff, especially looking to the nature of the amendment, which is explanatory in nature. The learned Trial Court has allowed the amendment application with cost, which also appears to be appropriate. 10. Thus, no case for interference is made out. The petition, being devoid of merit, is hereby dismissed.