Madhya Pradesh High Court
Sunil Gandhi vs Ramnaresh Singh on 2 February, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 2 nd OF FEBRUARY, 2024
MISC. PETITION No. 4661 of 2021
BETWEEN:-
SUNIL GANDHI S/O SHIVLAL GANDHI, AGED ABOUT 64
YEARS, OCCUPATION: BUISNESS 17 SRIRAM COLONY
JHANSI ROAD LASHKAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SANJEEV JAIN - ADVOCATE)
AND
1. RAMNARESH SINGH S/O DEVI SINGH, AGED
ABOUT 41 YEARS, VILL. DEVISINGH KA PURA
NENAGARH (MADHYA PRADESH)
2. ASHOK SINGH S/O SHRI NENHE SINGH, AGED
ABOUT 35 YEARS, OCCUPATION: AGRICULTURIST
138 YAMUNA NAGAR, THATIPUR GWALIOR
(MADHYA PRADESH)
3. MUNNA SINGH S/O SHRI BETAL SINGH, AGED
ABOUT 43 YEARS, VILLAGE NENAGIR, GWALIOR
(MADHYA PRADESH)
4. STATE OF MADHYA PRADESH THR. COLLECTOR
AUHADPUR NEW CITY CENTRE, GWALIOR
GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI TARUN KUMAR VYAS - ADVOCATE FOR RESPONDENT NO.2)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition, under Article 227 of the Constitution of India, has been filed by the petitioner/defendant No.1(a) being aggrieved by the order Signature Not Verified Signed by: PAWAN KUMAR Signing time: 05-03-2024 10:45:38 AM 2 dated 18.11.2021 passed by the Court of Third Civil Judge, Junior Division, Gwalior in Case No.86-A of 2013 (RCSA) whereby an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 preferred by the petitioner/defendant No.1(a) for making consequential amendment in the written statement in view of the amendment made by Respondents No.1 and 2/plaintiffs in their plaint was rejected.
2. The aforesaid order has been assailed on the ground that earlier on 26.07.2021, the learned Trial Court had allowed the application under Order 6 Rule 17 CPC preferred by the Respondents No.1 and 2/plaintiffs and the present application preferred by the petitioner/defendant No.1(a) was to amend the written statement which is consequential to the amendment made by the Respondents No.1 and 2/plaintiffs in their plaint, but the learned Trial Court ignoring the aforesaid aspect had rejected the said application which is per se illegal.
3. Learned counsel for the petitioner/defendant No.1(a) has vehemently argued that when one of the parties has been permitted to amend his pleading, an opportunity has to be given to the opposite party to amend his pleading also and such right cannot be denied on mere technicalities and as it has been held by the Hon'ble Apex Court in catena of its judgments that while dealing with an application under Order 6 Rule 17 CPC, ordinarily a liberal approach should be kept by the Courts and as the amendment sought by the petitioner/defendant No.1(a) was a consequential amendment to the amendment made by the Respondents No.1 and 2/plaintiffs in their plaint, the same was required to be allowed but learned Trial Court without appreciating the actual controversy between the parties had rejected the said application which is perverse and illegal.
Signature Not Verified Signed by: PAWAN KUMAR Signing time: 05-03-2024 10:45:38 AM 34. On the basis of the above arguments, it was prayed that the present petition be allowed by setting aside the impugned order dated 18.11.2021 and appropriate directions be issued to the Trial Court to allow present petitioner/defendant No.1(a) to carry out the proposed consequential amendments in the written statement.
5. Per contra, Counsel for the respondent No.2 while placing reliance on the judgment passed by the Hon'ble Apex Court in the matter of Gurdial Singh & Others vs. Raj Kumar Aneja & Others reported in (2002) AIR (SC) 1003 has contended that while granting leave to amend a pleading by way of consequential amendment, the Court is required to see as to whether the plea sought to be introduced is by way of an answer to the plea previously permitted to be incorporated by way of amendment by the opposite party and a new plea cannot be permitted to be added in the garb of a consequential amendment, though it can be applied by way of an independent or primary amendment.
6. In light of the aforesaid, it was contended that admittedly, the existence of an agreement dated 17.07.2012 was very well within the knowledge of the present petitioner/defendant No.1(a) at the time of filing of the suit, as in para 2 of the plaint, a specific averment has been made therein in that regard and in the written statement, the very execution of the said agreement has been denied and as by way of an amendment in the plaint subsequent event of execution of unregistered sale deed and the payment of stamp duty etc., before the SDO had been brought on record, the petitioner/defendant No.1(a) was required to confine his consequential amendment to the aforesaid fact but instead thereof, certain new facts have been tried to be brought on record, which is not permissible and therefore, the rejection of the said application cannot be said to Signature Not Verified Signed by: PAWAN KUMAR Signing time: 05-03-2024 10:45:38 AM 4 be perverse or illegal. It was thus prayed that the present petition is devoid of any substance and therefore, deserves to be dismissed.
7. Heard counsel for the parties and perused the record.
8. The fact of amendment carried out in the plaint by respondents No.1 and 2/plaintiffs is not denied. The amendment which has been carried out by the respondents No.1 and 2/plaintiffs is quoted hereinbelow:
2अ-यहिक, वादीगण ारा वाद त संप ीमती संगीता संह से जय बयनामा िदनांक 17.07.2012 जो उप पंज ीयक कायालय, वा लयर के पु तक कमांक-1अ थ कमांक-2945 द तावेज कमांक-42 िदनांक- 17.01.2020 कय कर मौके पर वा तिवक आ धप य ा िकया है।
वादीगण के हक म विणत स प बाबत् बयनामा के पंज ीयन बाबत कायवाही िवचाराधीन थी तथा उ कायवाही म वादीगण पर टा प शु क अ धरोिपत िकया गया था जसे वादीगण ारा स पूण प से उप पंज ीयक कायालय वा लयर को अदा क गई जसके प ात वादीगण को उप पंज ीयक कायालय ारा बयनामा िदनांक-17.07.2012 का पजीयन िदनांक-17.01.2020 को िकया गया है इस कार वादीगण बयनामा िदनांक 17.07.2012 से वाद त संप के त हा वामी होकर वा तियक आ धप यधारी है।
9. By filing an application under Order 6 Rule 17 of CPC, the petitioner/defendant No.1(a) had sought consequential amendment to be incorporated in para 3(a) which is reproduced hereinbelow:
3.(अ) - यह िक वादीगण दारा िदखावटी नुमायसी व फज िवकय प िदनांक 17-7-12 को तथाक थत संगीता संह के दारा िकया जाना बताया गया होकर िकसी फज संगीता संह को करा लया है। वादीगण दारा संगीता संह के नाम का खसरा जो िक तथाक थत तौर पर वष 2012 का वनाया गया एवं भूअ धकार पु तका जसके आधार पर इनके दारा तथाक थत वयनामा कराया x;k वह कतई फज वनावटी व अ धका रय के फज ह ता र कर वनायी गयी है। तथाक थत फज भूअ धकार पु तका त कालीन तहसीलदार के फज ह ता र बनाये गये है इसी कार राज व िनरी क एवं पटवारी के भी फज ह ता र वनाये गये है जब िक वष 2012 म जन अ धका रय के ह ता र है वे कभी पद थ ह नह थे। इसी कार संगीता संह का नाम राज व रकाड खसरा व खतौनी म आज तक नह कोई अमल य अथवा अ य तौर पर नह हआ है।
और संगीता कभी उ भूिम क भू वामी नह रही। वादीगण यह कृ य बहत ही गंभीर मामले क ेणी म आता है। और वादीगण दारा शासक य Signature Not Verified Signed by: PAWAN KUMAR Signing time: 05-03-2024 10:45:38 AM 5 अ धका रय के फज ह ता र वनाकर गलत तौर पर िकसी संगीता के थान पर िकसी अ य को खडा फज कागजात के तहत तथाक थत उ िवकय प स पािदत कराया है। जबिक संगीता संह का नाम राज व रकाड म रहा ही है। तो िवकय प स पािदत कराये जाने का ही नह उठता है। उ तथाक थत िवकय प शू य एवं िन भावी है।
10. Admittedly, from para 1, it would be evident that it is not a primary amendment which the petitioner/defendant No.1(a) had sought to be carried out in the written statement, but the amendment was in the form of consequential amendment and as has been held by the Honb'le Apex Court in the matter of Gurdial Singh & Others vs. Raj Kumar Aneja (supra) that a new plea cannot be permitted to be added in the garb of a consequential amendment, though it can be applied by way of an independent or primary amendment, since the very amendment which has been sought is a consequential amendment to the amendment made by the respondents No.1 and 2/plaintiffs in their plaint, the contents of the consequential amendment is required to be seen in the context of the aforesaid judgment, whether it can be termed as primary amendment or it is a consequential amendment. In para 2 of the plaint, there is a specific averment with regard to the execution of unregistered sale deed dated 17.07.2012 on that basis, the plaintiffs have stated that they have come in occupation of the disputed land.
11. In response to the aforesaid contention, the petitioner/defendant No.1(a) in specific terms has denied the execution of the said unregistered sale deed but from the para which the petitioner/defendant No.1(a) wants to incorporate by way of consequential amendment carries the denial further and certain new facts appear to have been tried to be incorporated in the written statement like, the revenue entries being forged after execution of the said unregistered sale deed, name of Sangeeta Singh from whom the property is said Signature Not Verified Signed by: PAWAN KUMAR Signing time: 05-03-2024 10:45:38 AM 6 to have been purchased, the land was never recorded in her name in the revenue records, with further allegation that forgery has been committed by the respondents No.1 and 2/plaintiffs in creating the revenue records so on and so forth which admittedly cannot be said to be a consequential amendment.
12. Thus, this Court holds that the learned Trial Court had not committed any illegality or irregularity in rejecting the application preferred by the petitioner/defendant No.1(a) under Order 6 Rule 17 of the Code of Civil Procedure, 1908 so also looking to the judgment passed by the Honb'le Apex Court in the matter of Gurdial Singh & Others vs. Raj Kumar Aneja (supra), the said consequential amendment could not have been allowed.
13. Accordingly, the present petition being devoid of any substance is hereby dismissed.
(MILIND RAMESH PHADKE) JUDGE pwn* Signature Not Verified Signed by: PAWAN KUMAR Signing time: 05-03-2024 10:45:38 AM