Madhya Pradesh High Court
Pradhan Sanchalak vs Umacharan on 4 April, 2022
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
M.P. No.1119-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 4th OF APRIL, 2022
MISC. PETITION No. 1119 of 2019
Between:-
PRADHAN SANCHALAK, MUNI SAMAJ, BETUL,
KHANJANPUR, TAHSIL AND DISTRICT BETUL
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI JAIDEEP SIRPURKAR, LEARNED COUNSEL FOR
THE PETITIONER)
AND
UMACHARAN S/O JIYALAL JAISWAL, AGED ABOUT 50
YEARS, R/O BEHIND DISTT. JAIL KOTHI BAZAR BETUL
1.
TEHSIL AND DISTRICT BETUL (MADHYA PRADESH)
AKHIL BHUMANDALIYA SARVASHIROMANI, MUNI
SAMAJ PRADHAN KARYALAY ADIMUNISWARSHARAM
2.
24/1, ALHADADPUR GORAKHPUR (UTTAR PRADESH)
GANGACHARAN JAISWAL, S/O JIYALAL JAISWAL R/O
KOTHIBAZAR, TEHSIL AND DISTRICT BETUL (MADHYA
3.
PRADESH)
DURGACHARAN JAISWAL, S/O JIYALAL JAISWAL, R/O
KOTHIBAZAR, TEHSIL AND DISTRICT BETUL
4.
(MADHYA PRADESH)
SMT. SONA BAI JAISWAL W/O LALA SHIVKUMAR, R/O
NEAR PRABHAT TALKIES, GONDIA, DISTRICT AND
5.
TEHSIL GONDIA (MAHARASHTRA)
SMT. SHARDA JAISWAL W/O ASHOK KUMAR, R/O
CHOTI BAZAR, NEAR MAIN HOSPITAL CHANDRAPUR,
6. TEHSIL AND DISTRICT CHANDRAPUR
(MAHARASHTRA)
DISTRICT COLLECTOR BETUL, TASIL AND DISTRICT
7. BETUL (MADHYA PRADESH)
SUB DIVISIONAL OFFICER BETUL TAHSIL AND
8. DISTRICT BETUL (MADHYA PRADESH)
TEHSILDAR, BETUL, TAHSIL AND DISTRICT BETUL
9. (MADHYA PRADESH)
CHIEF MUNICIPAL OFFICER, BETUL, TAHSIL AND
10. DISTRICT BETUL (MADHYA PRADESH)
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M.P. No.1119-2019
TOWN AND COUNTRY PLANNING, BETUL CIVIL LINES,
BETUL, TAHSIL AND DISTRICT BETUL (MADHYA
11.
PRADESH)
DISTRICT REGISTRAR, BETUL, COLLECTOR OFFICE,
BETUL, TAHSIL AND DISTRICT BETUL (MADHYA
12.
PRADESH)
BRIJKISHOR DHARGA S/O LALJIRAM DHARGA, R/O
13. KHANJANPUR, TAHSIL AND DISTRICT BETUL (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI MOHAN SAUSARKAR, LEARNED COUNSEL FOR
RESPONDENT NO.1)
This petition coming on for admission this day, the court passed the following:
ORDER
With the consent of parties, this petition is disposed of finally.
2. In this petition under Article 227 of Constitution of India, petitioner has challenged the legality, validity and proprietary of the order dated 09/01/2019 (Annexure P/4) passed in Civil Suit No.8A/2015 by 3 rd Additional Civil Judge to the Court of 1st Civil Judge, Class-I, Betul, whereby the application filed by the petitioner/defendant No.1 under Order VI Rule 17 of Code of Civil Procedure (in Short, 'CPC') seeking amendment in the written statement has been rejected.
3. The brief facts leading to filing of this case are that respondent No.1/plaintiff had filed a civil suit seeking relief for permanent injunction, declaration and possession alleging in the plaint that vide gift deed dated 19.04.1949, the suit lands were gifted to the petitioner/defendant No.1 and respondent No.2/defendant No.2. The said gift was a conditional gift i.e. conditions were imposed with regard to use of disputed land in a particular manner, however, the said conditions were breached. Being aggrieved, the respondent No.1/plaintiff had filed the suit. Petitioner/defendant No.1 filed the written statement and denied the claim of respondent No.1/plaintiff. It is stated in 3 M.P. No.1119-2019 the written statement that the aforesaid gift was in lieu of a land donated by the petitioner. It was further stated that alleged breach of condition of gift was well within the knowledge of respondent No.1, however, no action was taken. Respondent No.1 has no right to title or interest. Petitioner/defendant No.1 moved an application under Order VI Rule 17 of CPC for amending the clause 22 and 27 of the written statement. In the said application, it was specifically mentioned that the aforesaid amendment is necessary for proper adjudication of the matter. The aforesaid application was rejected on the ground that the details of the disputed land is already mentioned in para 8 of the plaint whereas the cause of action had arisen on 12.01.2012. No other reason whatsoever has been assigned.
4. Learned counsel for the petitioner contended that trial has not commenced on the date when the application was filed. Even the issues were not framed, therefore, it cannot be not said that the trial had commenced. The amendment proposed is a pure question of law, therefore, the trial Court ought to have allowed the application. Moreover, even the affidavit under Order XIII Rule 4 of CPC was not filed, therefore, it cannot be said that the trial had commended. Learned counsel for the petitioner has relied on the case of Revajeeta Builders and Developers vs. Narayanswami & Sons reported in (2009) 10 SCC 84, in which the law has been laid down and defined some basic principles which ought to be taken into consideration while allowing or rejecting the application which are:-(i) Whether the amendment sought is imperative for proper and effective adjudication of the case (ii) Whether the application for amendment is bonafide or malafide (iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (iv) refusing 4 M.P. No.1119-2019 amendment would in fact lead to injustice or lead to multiple litigation; (v) Whether the proposed amendment continuously or fundamentally changes the nature of character of the case; and (vi) as a general rule, the court should decline amendments if a fresh suit, on the amended claims would be barred by limitation. It is further submitted that none of the above issues were considered and decided by the trial court while passing the impugned order.
5. Learned counsel for the petitioner has also placed reliance on the judgment delivered in the case of Akshya Restaurant vs. P. Anjanappa reported in AIR 1995 SC 1498, wherein it has been held as under:-
"It is settled law that even the admission can be explained and even in consistent pleas could be taken in the pleadings. It is seen that in paragraph 6 of the written statement definite stand was taken but subsequently in the application for amendment, it was sought to be modified as indicated in the petition. In that view of the matter, we find that there is no material irregularity committed by the High Court in exercising its power under Section 115 of CPC in permitting the amendment of the written statement".
6. Learned counsel for the petitioner has also placed reliance on the judgment passed by the coordinate Bench of this Court in the Case of Smt. Shakuntala Bai Vs. Rajendra Kumar and others reported in 2014(5) MPHT 415 to contend that the application is within time since the trial had not commenced. The co- ordinate Bench has held that filing of affidavits under Order XVIII Rule 4 of CPC in lieu of examination-in-chief of witness would amount to "commencement of proceedings".
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M.P. No.1119-2019
7. In the instant case, it is not in dispute that affidavit under Order XVIII Rule 4 of CPC was not filed, therefore, trial had not commenced. Further in the case of Akshya Restaurant (supra) the Apex Court has held that it is a settled law that even the admission can be explained and even in consistent plea could be taken in the pleadings.
8. Considering the aforesaid, the learned trial court has committed an error of jurisdiction in rejecting the application under Order VI Rule 17 of CPC. Accordingly, the impugned order dated 09/01/2019 (Annexure P/4) is set aside and the application under Order VI Rule 17 of CPC is hereby allowed. The Court below is directed to proceed from that stage in accordance with law.
9. The petition is allowed to the extent indicated herein above.
No order as to costs.
(S. A. DHARMADHIKARI) JUDGE vc Digitally signed by VARSHA CHOURASIYA Date: 2022.04.08 17:59:49 +05'30'