Madhya Pradesh High Court
Shri Jagat Guru Shankrachariya Swami ... vs Plroprietor Mahawar Traders Shri ... on 24 October, 2017
THE HIGH COURT OF MADHYA PRADESH
WP-17393-2016
(SHRI JAGAT GURU SHANKRACHARIYA SWAMI SWAROOPANAND SARASWATI
BADRIKADWARIKA PEETHADISHWAR ASHRAM BAGL Vs PLROPRIETOR MAHAWAR
TRADERS SHRI GAYATRI SANSKRIT PATHSHALA AND BAGLAMUKHI MATH)
Jabalpur, Dated : 24-10-2017
Ms. Neelam Goyal, learned counsel for the petitioner.
Shri Umesh Trivedi, learned counsel for the respondent.
This writ petition under Article 227 of the Constitution of India by the landlord is directed against the order dated 04.10.2016 passed by 18th Additional District Judge, Jabalpur allowing application for amendment at the stage of final hearing of the appeal arising out of judgment and decree of eviction for arrears of rent and bonafide need.
Learned counsel for the petitioner taking exception to the order impugned contends that amendment allowed by the Court below cannot withstand the test of reasonability and sustainability in law for more than one reasons:
1. Similar applications for amendment were submitted before the trial Court and the same were rejected by successive orders.
2. In the WS the plea of denial of title was specifically taken and has been addressed by the trial Court.
3. The application for amendment does not reflect the fact of lack of knowledge during the pendency of the suit despite due delegence to seek incorporation of the aforesaid fact related to ownership of the suit premises by the plaintiff, therefore, the aforesaid amendment suffers from rigor of proviso to Order 6 Rule 17 CPC. Besides, the Appellate Court in all fairness ought not to have allowed the amendment at the stage of final hearing of the suit.
Per contra, Shri Trivedi, learned counsel supports the order impugned with the contention that the proposed amendments shall strike the controversy at its root as unless the plaintiff establishes his title to suit property, the decree for eviction for bonafide need cannot be granted. The Appellate Court has rightly allowed the amendment and no interference is warranted under Article 227 of the Constitution of India. Learned counsel relies upon the judgment of Hon'ble Supreme Court in [Mahila Ramkali Devi & others V. Nandram (D) Thr. LRs. & others] AIR 2015 SC 2270 to bolster his submissions.
Heard.
It is gainsaid that procedural laws are handmaid laws and not the mistress of the judicial process. The procedural laws are applied by concerned Court to regulate the proceedings of the trial. The discretionary jurisdiction conferred upon the trial Court in the aforesaid context, particularly in the matter of dealing with the amendment in pleadings though discretionary in nature but is required to be exercised with circumspection regard being had to the concept of justice, equity and good conscience. The aforesaid principle also applies to the Appellate Court while dealing with the amendment applications. The Courts below are also required to satisfy itself before allowing the amendment application whether the rigor as contained under proviso to order 6 Rule 17 in no way obstructs exercise of jurisdiction while it accedes to the prayer for amendment.
In the instant case, a bare perusal of the amendment application, does not suggest that despite due deligence, the applicant could not bring the aforesaid facts before the Court below at the time of submission of the pleadings or even during trial. Amendment under such circumstances is directly hit by the proviso to Order 6 Rule 17. That apart, the Appellate Court in all fairness ought to have first examined the record of the Court below before acceding to the aforesaid prayer for amendment in the memo of appeal. Moreso, in the teeth of the fact that the defence of the respondent was struck off by the trial Court, the Appellate Court under such circumstances is found to have dealt with the application in hot haste and in a slipshod manner which is not expected of an experienced Appellate Judge.
The judgment cited by learned counsel for the respondent is of no assistance to him as the fact situation in the present case is clearly distinguishable. Consequently, the writ petition stands allowed, the impugned order is set aside.
(ROHIT ARYA) JUDGE Devashish