Madhya Pradesh High Court
Smt.Shakuntla Bai vs Rajendra Kumar on 3 November, 2014
1 WP. No.5948/2013
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
SB: Justice Sujoy Paul
Writ Petition No.5948/2013
Smt. Shakuntala Bai
Versus
Rajendra Kumar and Ors.
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Shri B.B. Shukla, Advocate for the petitioner.
Shri B.D. Jain, Advocate for the respondent No.1.
Shri R.S. Dhakad, Advocate for the respondents No. 2 & 4
Shri S.M. Bhan, Advocate for the respondent No.3.
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ORDER
( 03 / 11 / 2014) The parties are in loggerheads on the question of amendment in the suit. This matter has a chequered history. Petitioner / plaintiff filed a suit for declaration and permanent injunction. By order dated 14.12.2010 (Annexure P/2) issues were framed by the court below. Issues No. 4, 5 & 6 were decided as preliminary issue by order dated 10.02.2011. Since preliminary issue No.4 was decided against the petitioner / plaintiff, the suit was dismissed. This order passed in Civil Suit No. 3A/2009 dated 10.02.2011 was challenged in First Appeal No. 123/2011. This Court, by order dated 27th November, 2012 allowed the appeal and set aside the order of court below. The trial court was directed to determine all the issues after recording evidence of the parties. On remand, the petitioner filed an amendment application under Order 6 Rule 17 C.P.C on 18.02.2013 (Annexure P/5). It was opposed by the other side. The Court below has rejected the amendment application for the following reasons:-
1. If the amendment is allowed, it will change the nature of the suit.
2. It will be difficult to decide the issues already framed which will amount to violation of High Court's order.
3. The suit was filed on 01.12.2009 amendment is filed after four years on 18.02.2013. Hence, there is an inordinate 2 WP. No.5948/2013 delay in filing the application.
4. The petitioner has not shown due diligence and therefore, as per proviso to Order 6 Rule 17 C.P.C amendment cannot be allowed after commencement of the trial.
2. Shri B.B. Shukla, learned counsel for the petitioner, criticized the said order by contending that petitioner earlier could not file the amendment application because the suit was dismissed while deciding the preliminary issue. After remand of the matter, he filed the amendment application which needs to be allowed. He submits that amendment does not change the nature of the case. It is necessary for lawful adjudication of the case. It will minimize litigation. Before filing amendment application, the affidavits under Order 18 Rule 4 C.P.C. were not filed and therefore, trial had not commenced. He relied on certain judgments in support of his contention.
3. Per Contra, Shri B.D. Jain, Shri S.M. Bhan and Shri R.S. Dhakad submit that court below has not committed any legal error in disallowing the said application. It is contended that amendment will change the nature of the case and it is belatedly filed. In addition, it is submitted that this court in first appeal has directed for deciding the issues. By way of amendment, petitioner is trying to wriggle out of said direction of this court which is impermissible. It is strenuously contended by Shri Jain by placing reliance on 1985 JLJ 730 (Gopal Vs. Administrative Officer, M.P. Khadi and Village Industries Board and Ors.) that since remand order is not challenged, the petitioner is bound by the same. He also relied on decision of this Court in WP No. 6775/2012 ( Smt. Hemlata Vs. Smt. Lalita Devi and Ors.)
4. I have bestowed my anxious consideration on the rival contentions of the parties.
5. It is seen that the suit was filed for claiming ¼ share in the ancestral property. The declaration is sought for to declare the will as null and void qua the plaintiff. The permanent injunction is prayed for to restrain the defendants from interfering in the suit property. Other ancillary reliefs are also claimed. The petitioner / plaintiff intended to add in the relief of declaration about division by meats and bounds Petition intended to pay the court fees for the said relief. In AIR 1960 3 WP. No.5948/2013 SC 335 (Mst. Rukhmabai Vs. Lala Laxminarayan and others) Apex Court opined that it is well settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so. In AIR 1990 MP 295 (Kalyan Singh Vs. Vakil Singh and Ors.) this court opined that it is the choice of the plaintiff to rest content by a mere decree for declaration in that suit and then to sue for further relief by bringing an independent suit subject to Law of Limitation or to pray for further relief by making an amendment in the plaint in that suit itself.
6. In the considered opinion of this Court, the plaintiff in the suit has already prayed for grant of ¼ share in the suit property. By way of amendment, she wanted to strengthen the pleadings and prayed for declaration by which she can get the property by proper division by meats and bounds. In the opinion of this Court, if this amendment is allowed, it will avoid multiplicity of litigation. This can be a valid ground to allow such amendment application. On this aspect, the Apex Court in (2001) 2 SCC 472 (Raghu Thilak D. John Vs. S. Rayappan and Others.) opined that the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances. In (2001) 8 SCC 97 (Estralla Rubber Vs. Dass Estate (P) Ltd.) the Apex Court held that the amendment of pleadings under Order 6 Rule 17 is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to certain conditions such as allowing the amendment should not result in injustice to the other side. The Apex court in (2012) 5 SCC 337 (Ramesh Kumar Agarwal Vs. Rajmala Exports Private Ltd. And others) opined that liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigation.
Considering the said judgments, in my view amendment prayed for should have been allowed to avoid multiplicity of litigation.
7. During the course of hearing, a specific question was asked by 4 WP. No.5948/2013 this court to the respondents whether before filing the amendment application, affidavits under Order 18 Rule 4 C.P.C. were filed by the petitioner. Learned counsel for the respondents fairly submit that no such affidavits were filed before filing amendment application. The question is whether petitioner can be deprived from amending the suit on the ground of delay or because of operation of proviso to order 6 Rule 17 C.P.C. The Apex Court in (Vidyabai and Others Vs. Padmalatha and another) reported in (2009) 2 SCC 409 opined that the date on which the issues are framed is the date of first hearing. C.P.C. envisage taking of various steps at different stages of the proceedings. Filing of affidavit in lieu of examination in chief of witness, would amount to "commencement of the proceedings." This view of Apex Court is followed by this Court in 2014 (2) M.P.L.J. 464 ( Pratap and Others Vs. Ganeshram and Others) and 2014 (4) MPLJ 143 (Manoj Jain Vs. Suman Goyal). Since, admittedly, on the date of filing of application for amendment, affidavits under Order 18 Rule 4 C.P.C were not filed, in my opinion, trial had not commenced. Thus, rejection of application for amendment is bad in law on the ground of either delay or effect of proviso to O. 6 R. 17 C.P.C.
8. So far question of change of nature of suit is concerned, in my opinion, the nature of suit will not get changed if amendment is allowed. Finding of court below is incorrect in this regard. Apart from this, in my opinion, if amendment is allowed there would be no violation of order passed by this Court in first appeal. The Court below has incorrectly rejected the amendment application which warrants interference by this Court. In FA. 123/2011 this Court has not foreclosed the right of petitioner to seek amendment in the plaint. The amendment will not cause any injustice to the other side.
9. Considering the aforesaid, the rejection order dated 07.08.2013 is set aside. The amendment application (Annexure P/5) is allowed. The court below is directed to proceed from that stage in accordance with law. Petition is allowed to the extent indicated above.
(SUJOY PAUL)
Sarathe/- Judge