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2025 DIGILAW 71 (MP)

Leela Krishna Mishr v. Banke Bihari

2025-01-28

ANIL VERMA

body2025
ORDER 1. Both the parties are heard. 2. Petitioner has preferred this miscellaneous petition under Article 227 of the Constitution of India being aggrieved by impugned order dated 1.3.2024 passed by First Civil Judge, Junior Division, Sabalgarh, District Morena in Civil Suit No.27/2023, by which an application under Order 6 rule 17 of CPC filed by the petitioner has been rejected. 3. Brief facts of the case are that the petitioner/plaintiff has filed a civil suit for declaration in regard to 1/5th share in the suit property. The defendant came with a plea by filing written statement that the partition has already been effected between the parties. Respondents filed an application under Order 6 rule 17 of CPC by stating that plaintiff has not stated in the plaint specifying the part of the property which were possessed by them and the said I.A. was allowed and subsequently, petitioner/plaintiff filed another I.A. under Order 6 rule 17 of CPC and after hearing both the parties, same has been dismissed by the trial Court. Being aggrieved by the aforesaid, petitioner has preferred this miscellaneous petition. 4. Learned counsel for the petitioner contended that the trial Court has committed grave error of law while dismissing the application under Order 6 rule 17 of CPC filed by the petitioner. The amendments are consequential in nature and it cannot be said to be disallowed as per the principle laid down by the Supreme Court in the case of Life Insurance Corporation of India v. Sanjeev Builders reported in AIR 2022 SC 4256 which mandates that the application for amendment cannot be dismissed on the ground of delay. In the instant case, the application for amendment filed by respondent has been allowed on 23.2.2024 and thereafter the petitioner has preferred the said application on 26.2.2024 which cannot be said to be delayed. From the proposed amendment nature of the suit will not be changed. trial Court has not considered the facts. Amendments are consequential in nature, hence the impugned order be set aside and the amendment application filed by the petitioner may be allowed. 5. Per contra, learned counsel for the respondents opposed the prayer and prayed for its rejection by supporting the order passed by the trial Court. 6. Both the parties are heard and perused the entire record with due care. 7. 5. Per contra, learned counsel for the respondents opposed the prayer and prayed for its rejection by supporting the order passed by the trial Court. 6. Both the parties are heard and perused the entire record with due care. 7. From perusal of the documents filed by both the parties, it appears that petitioner has filed a civil suit for permanent injunction and partition in the year 2003. The respondent has filed an application under Order 6 rule 17 of CPC which has been allowed by the Trial Court vide order dated 23.2.2024. Thereafter, the petitioner has preferred the said application. 8. Counsel for the respondents opposed the prayer by submitting that petitioner has failed to prove that in spite of due diligence they could not raise the matter before commencement of trial. Therefore, no application can be allowed after commencement of trial but in the present case, although the issues have been framed and case is fixed for plaintiff's evidence but the evidence is not begin yet. At the stage of plaintiff evidence both the parties have filed their independent application under Order 6 rule 17 of CPC. Petitioner has preferred this application after allowing the amendment application filed by the respondent, therefore, the application cannot be said to be delayed. 9. The Co-ordinate Bench of this Court in the case of Devendra Sadho v. Smt. Pramila Kumar reported in 2023 (II) MPWN 102 has held as under: "In my opinion, under such circumstances when specific pleadings are there in the plaint, the relief of partition and possession not claimed, can be claimed by the plaintiff/respondent No.1 by making amendment in the prayer clause and allowing the amendment does not change the nature of suit because the existing facts have not been disturbed and no new fact was inserted. The relief of possession is a consequential relief and as per the existing pleadings, the same should have been claimed, but not claimed under some misconception and if suit is allowed and decreed in favour of the plaintiff and possession is not claimed, the plaintiff would be required to file another suit claiming possession and as such, the basic object of amendment to avoid multiplicity of suit would have been defeated if application would have been rejected." 10. Therefore, this Court is of the considered opinion that the amendments are consequential in nature and does not change the nature of the suit. The proposed amendment appears to be bonafide. The reasons assigned by the petitioner appears to be just and bonafide and it is found that due to proper diligence petitioner could not raise these matter before commencement of trial. In the considered opinion of this Court, the Court below has not acted properly in exercising its jurisdiction, therefore, it would be appropriate and in the interest of justice that proposed amendment should be allowed. Consequently impugned order dated 1.3.2024 passed by the trial Court is set aside and the application filed under Order 6 rule 17 of CPC filed by the petitioner is hereby allowed. Let the amendment be carried out within 15 days from today. 11. The respondents/defendants would be at liberty to seek consequential amendment in their written statement. 12. Present petition stands disposed of finally in the above terms. 13. There shall be no order as to cost. 14. Certified copy as per rules.