Madhya Pradesh High Court
Jugan Singh vs Tulsiram on 4 October, 2018
MP NO.1551/2017 -1- (Jairam Kushwaha Vs. Amir Khan &
Anr.)
THE HIGH COURT OF MADHYA PRADESH
MP NO.1551/2017
(Jugan Singh Vs. Tulsiram)
Gwalior, Dated: 04.10.2018
Shri M. L. Sharma, Advocate for the petitioner.
Shri A.K. Agrawal, Advocate for respondent No.3.
1. Supervisory jurisdiction of this Court under Article 227 of the Constitution of India is invoked to assail the interlocutory order dated 31.10.2017 of the Court below (Annexure P/1) by which an application of defendant No.4 under Order 6 Rule 17 CPC for carrying out ammendment in WS stands allowed.
2. Learned counsel for the rival parties are heard on the question of admission and final disposal.
3. In a suit for declaration and permanent injunction, an application for amendment in WS under Order 6 Rule 17 CPC was preferred by the defendant to incorporate subsequent events which came to the knowledge of defendant after the commencement of the trial.
4. The suit in question after framing of issues, was fixed for cross-examination of plaintiff/witness after filing of affidavit under Order 18 Rule 4 CPC when the said MP NO.1551/2017 -2- (Jairam Kushwaha Vs. Amir Khan & Anr.) application for amendment was moved by the defendant.
5. The trial Court found that the knowledge of the subject matter of the amendment regarding the will executed on 01.09.2004 which was in possession of Shri Ramnath Kushwaha and the same came to the knowledge of the defendant on 20.04.2016 on the death of said Ramnath. The Court in this factual background held that since the defendant himself admitted that knowledge of the subject matter of the amendment was acquired by him on 20.04.2016, the said amendment could have been proposed before the commencement of trial instead of filing the application for amendment as late on or after 26.04.2017.
6. The trial Court held that the will in question forming the subject matter of the amendment was not in possession of the defendant No.4 and came to his knowledge on 20.04.2016 and therefore, accepted the contention of the respondent No.4 that he could not raise the said subject matter prior to the commencement of the suit. The trial Court therefore, allowed the application of the defendant No.4.
7. The learned counsel for the petitioner/plaintiff herein MP NO.1551/2017 -3- (Jairam Kushwaha Vs. Amir Khan & Anr.) submits that since the trial had commenced the learned trial judge commit jurisdictional error in allowing the amendment application despite the facts clearly revealing that defendant No.4 gained knowledge of the will on 20.04.2016 and yet defendant No.4 waited for more than one year to file the application under Order 6 Rule 17 and thus in the process allowed the trial to commence.
8. From the above facts, it is obvious that the application under Order 6 Rule 17 CPC did not explain as to why the defendant No.4 waited for more than one year after gaining knowledge of the subject matter of amendment and allowed the trial to commence.
9. In the considered opinion of this Court, the defendant No.4 failed to demonstrate that despite exercise of due deligence subject matter of amendment could not be brought forth earlier and therefore, the statutory bar contained in the proviso to Order 6 Rule 17 CPC comes in way of defendant No.4.
10. In view of above, the application for amendment preferred by defendant No.4 dated 26.04.2017 could not have been allowed. Thus, this Court has to exercise supervisory jurisdiction under Article 227 of the MP NO.1551/2017 -4- (Jairam Kushwaha Vs. Amir Khan & Anr.) Constitution of India and correct the jurisdictional error committed by the trial Court.
11. Consequently, the present petition stands allowed and the impugned order dated 21.10.2017 passed by IV Civil Judge Class I, Gwalior in Case No.157A/2015 to the extent it allows the application under Order 6 Rule 17 CPC preferred by defendant No.4 stands aside.
12. Accordingly, the present petition stands disposed of.
(Sheel Nagu)
suneel Judge
SUNEEL DUBEY
2018.10.05
15:47:22 +05'30'