Madhya Pradesh High Court
Dhannu Mehra vs Smt. Suman Maseeh Caste Christian on 1 October, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:50863
1 MP-5520-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 1 st OF OCTOBER, 2024
MISC. PETITION No. 5520 of 2024
DHANNU MEHRA
Versus
SMT. SUMAN MASEEH CASTE CHRISTIAN AND OTHERS
Appearance:
Shri Sunil Kumar Pandey - Advocate for petitioner.
ORDER
The present petition has been filed assailing the order dated 18.07.2024 (Annexure P/5) passed by the trial court in Civil Suit No. RCSA No.41 of 2019 whereby an application filed under Order 6 Rule 17 of the Code of Criminal Procedure has been rejected.
2. It is the case of the petitioner that he has filed a civil suit for permanent injunction with respect to the land situated at village Datlawadi, P.H.No.28/87, RNM Junnardev, Khasra No.346/4, 441/24 area 0.160 and 0.010 hectare. On notice being issued, the respondent no.1 filed a written statement as well as the counter claim before the trial court denying all the contentions and in addition certain objections were raised with regard to maintainability of the civil suit. By way of counter claim, she has sought the relief to declare revenue entry with respect to khasra no.346/4 area being 0.160 hectare to be null and void along with permanent injunction. A reply to the counter claim was filed by the petitioner denying all the contentions. Thereafter, an amendment application has been filed by the respondent no.1 Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 10/5/2024 10:51:34 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:50863 2 MP-5520-2024 which was allowed by the trial court. During pendency of the civil suit, the petitioner filed an amendment application which was duly replied by the respondents and considering the submissions made by the parties, the learned trial court decided the application vide impugned order and rejected the same. The learned trial court has observed that by way of amendment, the petitioner is trying to add a new plea and new relief, which will amount to changing the nature of the suit. The civil suit is at the stage of recording of evidence. Therefore, such application cannot be permitted. By way of amendment, the petitioner want to introduce a plea of declaration of title and recovery of possession, which is hit by Order 2 Rule 2 of the Code of the Civil Procedure as the plaintiff should have to file complete suit from the initial stage itself. Counsel appearing for the petitioner submits that body of the plaint contains the avertments with respect to the pleadings made in the amendment application. However, due to inadvertent error, the said relief could not be claimed in the plaint.
3. The fact remains that initially the civil suit was filed for permanent injunction. By way of amendment, a relief for declaration of title and recovery of possession is being sought which is not permissible in term of the judgment of the Hon'ble Supreme Court in the case of Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and Another reported in 2022 SCC OnLine SC 1128 wherein it is held as under:
"70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 10/5/2024 10:51:34 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:50863 3 MP-5520-2024 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 10/5/2024 10:51:34 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:50863 4 MP-5520-2024 disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)"
(emphasis supplied)
4. Counsel appearing for the petitioner could not explain that by way of amendment, the nature of the suit will not be changing. The documents available on record clearly show that the initial suit was only for permanent injunction and thereafter the relief of declaration of title and recovery of possession is being sought by way of amendment. The same will definitely be changed the nature of the suit therefore, the same is not permissible. Under these circumstances, no relief is extended to the petitioner. The learned trial court has rightly considered the same and rightly rejected the application filed under Order 6 Rule 17 of the CPC.Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 10/5/2024 10:51:34 AM
NEUTRAL CITATION NO. 2024:MPHC-JBP:50863 5 MP-5520-2024
5. This is a petition under Article 227 of the Constitution of India having supervisory jurisdiction and limited scope of interference as held by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shhankar Patil reported in (2010) 8 SCC 329, wherein certain guidelines have been issued by the Supreme Court, which are as under:-
"The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Interference is made to ensure that Courts below act within the bounds of their authority. Another view is possible, is not a ground for interference. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner."
6. Thus, from the aforesaid facts and circumstances of the case and after going through the judgement passed by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty (supra), no case for interference is made out. The impugned order passed by the learned trial court is just and proper and does not call for any interference in the present writ petition.
7. The petition sans merit and is accordingly dismissed. No order as to costs.
(VISHAL MISHRA) JUDGE sj Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 10/5/2024 10:51:34 AM