Madhya Pradesh High Court
Lalit Tiwari vs Neha Tiwri on 25 November, 2019
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1 MP-5134-2019
The High Court Of Madhya Pradesh
MP-5134-2019
(LALIT TIWARI Vs NEHA TIWRI)
2
Jabalpur, Dated : 25-11-2019
Shri A.K.Dwivedi, learned counsel for the petitioner.
Shri K.S.Jha, learned counsel for the respondent.
The present petition is filed under Section 227 of the Constitution of India being aggrieved by the order dated 18.09.2019 whereby the application filed by the petitioner under Order 6 Rule 17 has been rejected.
The facts in short are that the petitioner has filed an application under Section 10 of the Guardian and Wards Act, 1980 seeking custody of Ku. Snehil Tiwari aged about 9 years who is daughter of the petitioner. According to the petitioner, the suit is at pre trial stage as no reply has been filed by the respondents and the petitioner filed an application under Order 6 Rule 17 seeking amendment in the petition. By the impugned order, the said amendment has been rejected merely on the ground that the averments are already made in the application.
Learned counsel for the respondent supported the order on the ground that the amendment sought is already part of the pleading and therefore, the same is not necessary and the application was rightly rejected by the trial Court.
After having heard learned counsel for the parties, I am of the view that since the trial is at preliminary stage and even no reply is filed according to the applicant the trial Court has committed an error manifest while rejecting the amendment application sought by the applicant/plaintiff. The Apex Court in the case of Mohinder Kumar Mehra Vs. Roop Rani Mehra and Others (2018) 2 SCC 132 held that the amendment can be allowed even after the commencement of the trial unless a prejudice is shown to be caused to the other side.
In the present case, no such prejudice has been demonstrated by the Digitally signed by ANUPRIYA SHARMA CHOUBEY Date: 30/11/2019 11:05:55 2 MP-5134-2019 learned counsel for the respondent.
In view of the aforesaid, the order impugned is not sustainable. Same is set aside and the application for the amendment is allowed.
In case if the reply/WS has already been filed by the respondent, the respondent shall be at liberty to seek amendment in the WS.
In view of aforesaid, the petition is allowed.
(VIJAY KUMAR SHUKLA) JUDGE anu Digitally signed by ANUPRIYA SHARMA CHOUBEY Date: 30/11/2019 11:05:55