Madhya Pradesh High Court
Natthu Singh Jadaun vs Narendra Singh Narwariya on 26 August, 2014
1 W.P.No. 8417/2012
(Natthu Singh Jadaun & Ors.
Vs.
Narendra Singh Narwariya & Ors.)
26/08/2014
Shri D.D.Bansal, Advocate for the
petitioners/plaintiffs.
Shri S.S.Gautam , Advocate for the respondent No.
3/defendant.
Heard.
This writ petition under Article 227 of the Constitution
of India is directed against the order dated 18/10/2012 passed
in Civil Suit No. 39-A/2012 by Fourth Additional District
Judge, Gwalior. By the impugned order, plaintiffs' application
under Order VI Rule 17 CPC dated 13/5/2011 and 5/9/2012
have been rejected.
Facts necessary for disposal of this petition are to the
effect that plaintiffs' have file a suit in representative capacity for declaration that the suit property be declared as a public property and the sale deed dated 1/7/2000 executed in favour of defendant No. 1 is ineffective and does not bestow any right upon the defendant No. 1. Besides relief of permanent injunction, restraining the defendant No. 1 from raising any construction over the disputed property has also been prayed. Suit is filed on the premise that suit land is a Maufi land of temple Rishabh Dev Devsthan and therefore, is a public 2 W.P.No. 8417/2012 property. The alleged sale deed dated 1/7/2000 is a forged and fabricated sale deed. No right, title or interest can be said to have accrued upon defendant No. 1 on the basis of aforesaid sale deed. During pendency of the suit, plaintiffs filed applications under Order VI Rule 17 CPC to bring on record certain facts as regards the nature of land which came to the knowledge of the plaintiffs while they applied for details of suit land under Right to Information Act and documents so procured therefrom have also been filed. Amendment in the plaint was sought to reinforce the contention that suit land is a public property and cannot be subject matter of sale. It is submitted that aforesaid amendment is in the line with and in aid of the averments made in the plaint. Neither the nature of suit nor relief clause are changed. Further the amendment sought to be incorporated by the amendment since came to the knowledge of the plaintiffs later on, as such in the interest of justice amendments deserves to be allowed.
The aforesaid applications have been opposed by defendants by filing reply.
Trial Court has rejected the application primarily on the premise that case has been fixed for evidence and plaintiffs' witnesses have already been examined. Plaintiffs ought to have procured details, nature and particulars of suit land 3 W.P.No. 8417/2012 before filing of the suit. Therefore, trial Court has concluded that in terms of proviso to Order VI Rule 17 of CPC, amendment cannot be allowed and accordingly, dismissed the applications.
Learned counsel for the plaintiffs has submitted that trial Court has committed a grave error of law and fact while rejecting the applications. By proposed amendments, plaintiffs did not intend to bring on record any facts independent of averments made in the plaint nor prayed for any alteration in the relief clause. Facts in the amendment applications since were not in the knowledge of the plaintiffs at the time of filing the suit and the same could be procured only after the same were supplied under Right to Information Act, it cannot be said that despite due diligence, plaintiffs did not incorporate the facts in the body of suit. It is submitted that law as regards jurisdiction of the Court with reference to Order VI Rule 17 CPC is well settled. Learned counsel for the plaintiffs has referred to series of judgments to bring home the point in that behalf wherein it has been held that all amendments ought to have been allowed to satisfy as may be necessary for the purpose of determining the real questions in controversy between the parties. Hon. Apex Court in the case of Rajesh Kumar Aggarwal and others Vs. K.K.Modi and others, (2006 ) 4 SCC 385 has observed that the object of 4 W.P.No. 8417/2012 Order VI Rule 17 is that the Courts should try the merits of the case that come before them and should, consequently, allow all amendment that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. Again in the case of Ram Kumar Barnwal Vs. Ram Lakhan, (2007) 5 SCC 660, Hon. Supreme Court while considering the question of taking note of subsequent events held that Court has power to take note of subsequent events and mould the relief accordingly, subject to the following conditions being satisfied; (i) that the relief, as claimed originally has by reason of subsequent events become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the Court promptly and in accordance with the rules of procedural law so that opposite party is not taken by surprise.
In view of well settled principles of law as regards scope of jurisdiction of Court under Order VI Rule 17 CPC, learned counsel for the plaintiffs has submitted that the trial Court ought to have allowed plaintiffs to bring on record the facts by proposed amendments since same came to their knowledge subsequent to filing of the suit through Right to 5 W.P.No. 8417/2012 Information Act. Same could not have been disallowed as proviso to Order VI Rule 17 CPC did not have any application to the facts in hand.
Learned counsel for the defendants on the other hand has supported the impugned order by submitting that no illegality or jurisdictional error has been committed by the trial Court warranting interference of this Court under Article 227 of the Constitution of India.
Having heard, learned counsel for the parties, this Court is of the opinion that law as settled by Hon. Supreme Court and various High Court need not be reiterated. Jurisdiction of the Court under Order VI Rule 17 CPC is discretionary in nature and the Courts should be liberal in allowing the amendments however keeping in mind the principles laid down by Hon. Apex Court in the case of Ram Kumar Barnwal (supra). Further such power is made circumspective by adding proviso to Order VI Rule 17 CPC by amendment. Requirements as contained in the proviso are in fact construed jurisdictional facts which need to be pleaded and addressed before seeking amendment based on acquisition of knowledge of fact after filing of the suit. Trial Court before considering the application under Order VI Rule 17 CPC on merits also has to address on such jurisdictional facts. The incorporation of proviso to Order VI Rule 17 CPC 6 W.P.No. 8417/2012 in fact is to ensure that provisions of Order VI Rule 17 CPC are not misused causing any undesirable or unwarranted delay in administration of justice or cause prejudice to other side. In the opinion of this Court, trial Court ought to have appreciated that (i) suit was filed in a representative capacity seeking a declaration that the suit property is a public property and no sale could be affected thereof in favour of defendant No. 1; (ii) the plaintiffs had applied to find out further details as particulars and nature of land under Right to Information Act; (iii) the information was supplied as indicated on 14/2/2011 and thereafter, on 13/5/2011, plaintiffs have filed the application, as such delay cannot be attributable to the plaintiffs in bringing on record the facts having come to their knowledge at a later stage; (iv) the facts sought to be pleaded by plaintiffs neither are independent of the factual premise on which the relief claimed nor in any way can be said to be causing any prejudice to other side.
In fact trial Court ought to have appreciated the facts proposed to be brought on record for determining the real questions between the parties as to whether suit land is a public land or not. That apart by amendment, no additional relief has been sought independent of relief already sought in the main suit.
In view of the aforesaid discussion, amendment is 7 W.P.No. 8417/2012 relevant. Trial Court has not addressed upon the jurisdictional issue in right perspective and has merely reiterated that the plaintiff ought to have acquired knowledge before filing of the suit. Hence, with reference to proviso appended to Order VI Rule 17 CPC, the approach of trial Court is not found correct as the same is not based on settled principles of law. Accordingly, petition is allowed and order impugned is set aside. Trial Court to allow the applications and permit the plaintiffs to carry out the necessary amendments.
(Rohit Arya) Judge jps/-