Madhya Pradesh High Court
Smt. Suman Agrawal vs Rajesh Verma Judgement Given By: ... on 15 January, 2014
Author: K.K. Trivedi
Bench: K.K. Trivedi
1
HIGH COURT OF MADHYA PRADESH :
JABALPUR.
Writ Petition No.10906/2013
Smt. Suman Agrawal
Vs.
Rajesh Verma & Others
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
Shri Ankit Pandey, learned counsel for the
petitioner.
Shri M.P. Acharya, learned Panel Lawyer for the
respondents.
ORDER
(15.01.2014) This petition under Article 227 of the Constitution of India is directed against the order dated 14.9.2012 passed in Civil Suit No.674-A/2007 by 19 th Civil Judge,Class II, Bhopal allowing the application of the respondents/plaintiffs for amendment in the plaint.
2. It is contended that the respondent/plaintiff filed a suit initially for declaration and permanent injunction in mandatory form. An application for amendment was made by the respondent/plaintiff, which was contested by the petitioner. The said application was rejected vide order dated 30.6.2010. A writ petition was preferred before this Court under Article 227 of the Constitution of India by the 2 respondents/plaintiffs challenging such order of trial court and holding that no error was committed by the court below in rejecting the application of the respondents/plaintiffs, the said writ petition was dismissed. Again with a malafide intention, on account of certain events, which have taken place subsequent to filing of suit, the amendment application was repeated by the respondents/plaintiffs, which was though opposed, but has been allowed by the impugned order. Therefore, this writ petition is required to be filed.
3. It is contended by the petitioner that the application for amendment in the plaint was once rejected and the very same pleadings cannot be allowed to be inserted in a subsequent application, on the application of principles of res judicata, therefore, the order passed by the court below is bad in law. It is thus contended that the writ petition is liable to be allowed and the order impugned is liable to be set aside.
4. By filing a return, respondents/plaintiffs have contended that such a plea could not be raised by the petitioner in this writ petition especially when they have already made consequential amendment in the written statement, with respect to the amended pleadings raised in the plaint. It is contended that certain events have taken place of which action was initiated by the respondents/plaintiffs, but since in the civil litigation 3 the relief in that respect was required to be claimed, the amendment was made. After due consideration of law, the application has been allowed by the court below and, therefore, such an order of the trial court need not be interfered in this petition. It is put forth that in given circumstances principles of res judicata would not be attracted at all and, therefore, the order impugned in the writ petition is not liable to be set aside. It is contended that the writ petition is liable to be dismissed.
5. Heard learned counsel for the parties at length and perused the record.
6. It is not in dispute that on earlier occasion the amendment was sought by the respondents/plaintiff in the plaint by making an application under Order 6 Rule 17 of the Code of Civil Procedure. The suit was at the preliminary stage, but the court was of the opinion that such an amendment was not to be allowed as it was held that nature of the suit would be changed. By making a pleading in the plaint, it was in fact tried to convert the suit into one of partition and separate possession. The court held that it should have been raised at the time of filing of the suit. These facts were not subsequent event after the filing of the suit. Only partial amendment was allowed. Other parts stated in the application were rejected. Such an order was called in question before this Court in a writ petition and this Court after considering the law laid down by the Apex 4 Court in several cases, came to the conclusion that such an amendment was not to be allowed. The writ petition was dismissed affirming the order passed by the Court below. Now in light of this, it has to be examined whether the amendment sought by a subsequent application was the same which was earlier disallowed or something else. Earlier in the application, paragraph-22(a) was proposed to be added in the plaint. In the subsequent application also, paragraph-22(a) was proposed tobe added in the plaint. The only difference between the pleadings in the said two paragraphs is that certain events which have taken place on 14 th July, 2012 were mentioned. Rest of the parts to some extent are the similar pleadings, which were stated in the earlier application, but in different words. However, the fact remains that the respondents/plaintiffs were intending to insert the pleadings in respect of certain events which have taken place after filing of the suit and even after rejection of the earlier application for amendment in the plaint. Therefore, it could not be said that the amendment in the subsequent application were the identical pleadings as were in the earlier application, which was rejected by the court. In view of this, since there is difference in the pleadings, the principles of res judicata would not be attracted.
7. Now the objection, which is raised with respect to the pleadings, is only this much that the same will change the nature of the suit. It is contended that 5 since amendment will convert the suit into one for partition also, such a plea could not be raised. Learned counsel for the petitioner has contended that this is not permissible in view of the well settled law, but none of the cases have been pointed out by the learned counsel. On the other hand, learned counsel for the respondents has relied in one of the decisions of the Apex Court in the case of G. Nagamma v. Siromanamma - 1993 (1) M.P. Weekly Notes 171. After going through the said judgment it is clear that the same is also not applicable in the present case as the amendment in the suit was sought where the relief for specific performance was claimed. Such is not the relief claimed in the present suit by the respondents/plaintiffs. Therefore, on facts as also on law, the reliance placed by the learned counsel for the respondents is misconceived. However, before amendment in the CPC, the provisions were examined by the Apex Court in the case of Sampath Kumar v. Ayyakannu and another - (2002) 7 SCC 559 wherein it was held that for the real justice if amendment in the pleading of the plaint was necessary the amendment in pleadings can be allowed at any stage. Further in the case of Rameshkumar Agarwal v. Rajmala Exports Private Ltd. - (2012) 5 SCC 337 in paragraph-21 the Apex Court has held that in such circumstances where multiplicity of the suit is to be avoided even the approach should be liberal and unless any right is accrued to the defendant, which is not to be 6 obstructed by any amendment in the plaint, the amendment in the pleading should be allowed by the court and hypertechnical objections should not be weighed. In the case of Abdul Rehman vs. Mohd. Ruldu - (2012) XI SCC 341 after the amendment in the order 6 Rule 17 of the Code of Civil Procedure by way of Amendment of 2002 the Apex Court has held that even the change in the relief, if are consequential or germane to the relief claimed originally in the plaint, should be allowed by the court by allowing the amendment in the plaint. In view of this, if the pleadings in the subsequent amendment applications are considered, it would be abundantly clear that the part which was earlier allowed by the amendment would in fact become redundant in case the amendment is not allowed, as sought by the subsequent application. In view of this, the order passed by the court below cannot be said to be bad in law. Keeping in view the fact that the pleadings are accordingly amended by the petitioner/ defendants in the written statement by way of making consequential amendment, it cannot be said that any injustice would be caused to the petitioner, in case the amendment in the plaint stands allowed.
8. As a consequence of discussion above, the petition fails and is hereby dismissed. However, there shall be no order as to costs.
(K.K. Trivedi) Judge shukla-