Madhya Pradesh High Court
Pramod Kumar Sharma vs Smt.Vimla Devi on 21 June, 2019
1
THE HIGH COURT OF MADHYA PRADESH
M.P. No.1229/2019
(Pramod Kumar Sharma vs. Smt. Vimla Devi & Ors.)
Gwalior, Dated : 21.06.2019
Shri N.K. Gupta, Senior Advocate with Shri S.D.S. Bhadoriya,
Counsel for the petitioner.
None for the respondents though served.
This petition under Article 227 of the Constitution of India has been filed against the order dated 11.1.2019 passed by Second Civil Judge Class-II, Guna in Civil Suit No.6A/2015 by which the application filed by the petitioner under Order 6 Rule 17 of CPC for amendment in the plaint has been rejected on the ground that the proposed amendment is not based on any subsequent event.
2. The necessary facts for the disposal of the present petition in short are that the petitioner has filed a suit for declaration of title, partition and permanent injunction on the ground that the property in dispute is an undivided Hindu family property. The petitioner has filed his affidavit under Order 18 Rule 4 of CPC and the case was fixed for cross-examination of the plaintiff/petitioner.
3. The petitioner filed an application under Order 6 Rule 17 of CPC proposing the amendment in the plaint to the effect that the petitioner was not aware of the family partition which had taken place on 16.5.2011 and family settlement deed was executed, according to which, a part of the property was given in three equal 2 THE HIGH COURT OF MADHYA PRADESH M.P. No.1229/2019 shares to the petitioner/plaintiff and defendants No.1 and 4. It was further pleaded that the said acknowledgment of partition dated 16.5.2011 was executed in presence of wife of defendant No.1 and as per the family partition, the petitioner had 1/3rd share in the plot. Accordingly, the prayer was also sought to be amended.
4. The application for amendment was opposed by the respondents/defendants.
5. The Trial Court by the impugned order dated 11.1.2019 has rejected the application on the ground that if the amendment is accepted, then it would change the nature of the suit.
6. Challenging the order passed by the Trial Court, it is submitted by the counsel for the petitioner that the suit itself is for declaration of title, partition and permanent injunction. By the proposed amendment, the petitioner is trying to rely upon the family partition which was acknowledged on 16.5.2011. The basic prayer by the petitioner before the Trial Court is the partition. Whether the acknowledgment of partition was executed on 16.5.2011 or not or the partition had taken place or not would not make any difference so far as the nature of the suit is concerned.
7. None appears for the respondents though served.
8. Considered the submissions made by the counsel for the petitioner.
3
THE HIGH COURT OF MADHYA PRADESH M.P. No.1229/2019
9. The Supreme Court in the case of Gurbaksh Singh & Ors. vs. Buta Singh & Anr. reported in 2019 (1) MPLJ (S.C.) 269 has held as under:-
"7. While allowing amendment of plaint, after amendment of 2002, this Court in circumstances similar to the present case, in Abdul Rehman and Anr. vs. Mohd. Ruldu and Ors., 2012 MPLJ Online (S.C.) 27= (2012) 11 SCC 341, had observed:
"11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments 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. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and 4 THE HIGH COURT OF MADHYA PRADESH M.P. No.1229/2019 circumstances of each case. The above principles have been reiterated by this Court in J. Samuel & Others v. Gattu Mahesh and Others, (2012) 2 SCC 300 and Rameshkumar Agarwal v. Rajmala Exports (P) Ltd. and Others, (2012) 5 SCC 337.
Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment."
10. In the present suit the relief which has been claimed by the petitioner is that of partition as well as for declaration of his title and permanent injunction as well as for declaration that the sale deed dated 2.8.2013 is null and void. Since the petitioner/plaintiff is seeking partition and declaration of his share, therefore in the considered opinion of this Court the proposed amendment would not change the nature of the suit. Further the petitioner has stated in his application that earlier he was not aware of the partition which was acknowledged by partition dated dated 16.5.2011. Whether the petitioner was aware or not is a question of evidence and thus this Court is of the considered opinion that the Trial Court has committed a material illegality by rejecting the application filed by the petitioner under Order 6 Rule 17 of CPC.
11. Accordingly, the order dated 11.1.2019 passed by Second Civil Judge Class-II, Guna in Civil Suit No.6A/2015 is hereby set aside. The application filed under Order 6 Rule 17 of CPC by the petitioner is hereby allowed. The petitioner is directed to carryout the 5 THE HIGH COURT OF MADHYA PRADESH M.P. No.1229/2019 amendment within stipulated period which may be fixed by the Trial Court for the said purposes and the respondents are also granted liberty to move an application for consequential amendment in the written statement, if so desire.
12. The petition succeeds and is hereby allowed.
(G.S. Ahluwalia)
(alok) Judge
ALOK KUMAR
2019.06.25
17:38:29 +05'30'