Madhya Pradesh High Court
Smt. Kamlesh Sharma vs Mahesh Chand Mangal on 24 August, 2018
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MP-4040-2018
The High Court Of Madhya Pradesh
WP-4040-2018
(SMT. KAMLESH SHARMA Vs MAHESH CHAND MANGAL)
Gwalior, Dated : 24 .08.2018
Shri Nirmal Sharma, learned counsel for the
petitioner.
None for the respondents.
1. The supervisory jurisdiction of this Court under Article 227 of the Constitution of India is invoked assailing the interlocutory order passed on 14-08-2018 by 5th Additional District Judge, Morena in Civil Suit No.5/2015 rejecting an application under Order 6 rule 17 CPC preferred by defendant No.4 and 5 (the present petition has been filed only be defendant No.5).
2. Learned counsel for the petitioner is heard on the question of admission.
3. The impugned order reveals that trial Court disallowed the application under Order 6 Rule 17 of defendant No.4 & 5 on the ground that the subject matter of the amendment is not relevant to the issue involved in the suit and the stand in the amendment application runs contrary to the stand in the WS. Moreso, the Trial Court found that since trial had commenced as it had reached the stage of cross-examination of plaintiff and thus, the bar contained in proviso to Order 6 Rule 17 CPC had become operational persuading trial Court to reject the application.
3.1 The learned counsel for the petitioner relyies upon -2- MP-4040-2018 the decision of the Apex Court rendered in the case of State of Bihar v/s Modern Tent House reported in 2017(8) SCC 567 and also in Baldev Singh v/s Manohar Singh reported in 2006(6) SCC 498.
4. A bare perusal of the first decision of Apex Court in Modern Tent House (supra), elicits that the amendment therein was permitted by the Apex Court as it merely elaborated and amplified the defence already taken, whereas in the instant case if the amendment application runs contrary to the stand in WS. Thus, the said decision of Apex Court is of no avail to the petitioner. However, the second decision of the Apex Court in the case of Baldev Singh (supra), the apex Court laid down the parameter and sweep of the powers exercisable under Order 6 rule 17 CPC and while doing so, relied upon the decision of the Privy Council rendered in the case of Ma Shwe Mya vs Maung Mo Hnaung reported in 1992 PC 249 wherein the Privy Council observes thus:-
"All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of -3- MP-4040-2018 the suit."
4.1 The aforesaid reproduced portion of the judgement of the Privy Council relied upon in Baldev Singh (supra) clearly prohibits allowing of amendment when it would introduce a distinct cause of action than the one raised in the suit. Thus, the said decision of Baldev Singh (supra) is also of no avail to the petitioner.
5. Moreso, in the limited supervisory jurisdiction of this Court, interference in the exercise of discretion by the trial Court without transgressing any jurisdictional limits set by law, is not called for. The trial Court has a right to pass a correct and also a wrong order by assigning reasons justifiable in law which does not fall foul of any of the fundamental principles of law and does not cause prejudice to any party.
6. In view of the absence of transgression of any jurisdictional limit of the Trial Court, this Court declines interference and therefore, the present petition stands dismissed, sans cost.
(Sheel Nagu) Judge suneel Digitally signed by SUNEEL DUBEY Date: 2018.08.28 18:54:22 +05'30'