Madhya Pradesh High Court
Malti Bbai vs Krishna Kumar on 4 April, 2022
Author: Vishal Mishra
Bench: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 4th OF APRIL, 2022
MISC. PETITION No. 5893 of 2018
Between:-
1. MALTI BBAI W/O LATE SHRI IMRAT LAL , AGED
ABOUT 60 YEARS, OCCUPATION: CASTE KATIYA
WARD NO.11 BOODI BALAGHAT POST BHARVELI
TEHSIL/DISTRICT BALAGHAT (MADHYA
PRADESH)
2. RAJESH KUMAR S/O LATE SHRI IMRAT LAL ,
AGED ABOUT 36 YEARS, OCCUPATION: CASTE
KATIYA R/O WARD NO. 11 BUDHI BALAGHAT POST
BALAGHAT TEHSIL DISTT. BALAGHAT Q
(MADHYA PRADESH)
3. RITESH KUMAR S/O LATE SHRI IMRAT LAL ,
AGED ABOUT 34 YEARS, OCCUPATION: CASTE
KATIYA R/O WARD NO. 11 BUDHI BALAGHAT POST
BALAGHAT TEHSIL DISTT. BALAGHAT Q
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI DEVASHISH SAKALKAR, ADVOCATE )
AND
1. KRISHNA KUMAR S/O LATE SHRI IMRAT LAL
OCCUPATION: CASTE KATIYA WARD NO.11
BHARVELI POST BHARVELI TEHSIL/DISTT.
BALAGHAT (MADHYA PRADESH)
2. TARA BAI W/O LATE SHRI IMRAT LAL , AGED
ABOUT 66 YEARS, R/O WARD NO. 11 BHARVELI
POST BHARVELI, TEHSIL AND DISTT. BALAGHAT
(MADHYA PRADESH)
3. STATE OF M.P. THROUGH COLLECTOR, DISTT.
BALAGHAT BALAGHAT (MADHYA PRADESH)
.....RESPONDENTS
(SHRI PRASHANT K BADARYA, ADVOCATE FOR RESPONDENT
NO.1. )
T h is petition coming on for admission this day, the court passed the
following:
ORDER
With the consent of the parties, the matter is finally heard.
Signature Not Verified SANThe present petition has been filed challenging the orders dated 19.07.2017, Digitally signed by SHALINI LANDGE Date: 2022.04.18 17:32:01 IST 10.08.2018 and 06.09.2018 passed by the First Civil Judge, Class-I, Balaghat 2 (M.P.) in Civil Suit No.39A/14 whereby, the application filed under Order 6 Rule 17 of the CPC and the application under Order 7 Rule 14 of the CPC have been allowed.
It is submitted that the respondent no.1/plaintiff filed a civil suit for permanent injunction against the defendants in the year 2013 praying for a decree of permanent injunction against the defendants and the cost of the suit and any other relief which may the court deems fits be also granted. No other relief was claimed by the respondent no.1/plaintiff. On receiving notice, the petitioners/defendants no.2 to 4 filed a written statement dated 08.01.2014 categorically denying the title of the respondent no.1/plaintiff in the suit property. The issues were framed by the learned trial Court and thereafter the date for evidence was fixed on 09.04.2014. After lapse of almost three years on 22.02.2017, an application under Order 6 Rule 17 of the CPC was filed praying for an amendment in the pleadings. The said application only proposes the amendment in the plaint but it is completely silent as to what transpired the respondent no.1/plaintiff to file amendment application where the declaration on the mutation proceedings was asked for and for that permanent injunction was sought. It was specifically pleaded in the application by way of proposed amendment that, the order of mutation be set aside. The application was vehemently opposed by the defendants by filing a reply. Vide order dated 28.07.2017 the said application was considered by the learned trial court and without assigning any cogent and plausible reason, learned trial court in very formal and casual manner has allowed the application. The respondent no.1/plaintiff thereafter filed an affidavit on 20.11.2017 under Order 18 Rule 4 of the CPC and the trial commenced.
On 09.01.2018, the defendants cross-examined the respondent no.1/plaintiff and his evidence was closed. On 27.03.2018, another application was preferred by the respondent no.1/plaintiff under Order 7 Rule 14 of the CPC and prayed for the documents to be taken on record. It was argued that the identity of the respondent no.1/plaintiff was disputed in the written statement and further disputed in the Signature Not Verified evidence and cross-examination, which was virtually proved by the defendants.
SAN Digitally signed by SHALINI LANDGEThe respondent no.1/plaintiff knowingly and deliberately did not file any Date: 2022.04.18 17:32:01 IST application prior to commencement of trial but filed the application subsequently.
3The application was again considered on 10.08.2018 and without assigning any reasons, the application was allowed in most surprisingly manner. On 21.08.2018, another application was preferred under Order 6 Rule 17 of the CPC for amending the pleadings, the same was again replied and was vehemently opposed that the same will amount to change of the nature of the civil suit and is barred by limitation. On 06.09.2018, the learned trial court despite heavy objection of the petitioners/defendants no.2 to 4 has again allowed the same vide order dated 06.09.018. Being aggrieved by the orders passed by the learned trial court by allowing the application under Order 6 Rule 17 of the CPC and the application under Order 7 Rule 14 of the CPC, the present petition has been filed.
It is argued that the civil suit was only for seeking injunction and by way of amendment, he has prayed for declaration of the proceedings and mutation to be null and void and also for setting aside the mutation order. The title of the respondent no.1/plaintiff is specifically denied by the defendants by filing a written statement. It is argued that first application under Order 6 Rule 17 of the CPC was filed challenging the mutation proceedings alleging that the death of the father of the respondent no.1/plaintiff without impleading legal heirs to be the party to the proceedings, the mutation was got done, as the respondent no.1/plaintiff was not even a party to the proceedings, therefore, there is no information regarding the mutation proceedings but the application itself is silent regarding the death of the father of respondent no.1/plaintiff regarding the initiation of mutation proceedings in the final order, which has been passed by the mutation proceedings. No date of final order of mutation proceedings have been reflected from the application. Even otherwise, the mutation order passed by the competent authority is required to be challenged by filing an appeal before the appellate authorities. Without there being challenge to mutation order by the authorities, no relief can be extended to the petitioners/defendants no.2 to 4. There is no mentioning in the entire application that whether the mutation proceedings have been challenged before the competent appellate authorities at any point of time by the respondents. The civil suit was filed on 05.03.2013 and the written statement was filed on 08.01.2014 and the issue was Signature Not Verified SAN Digitally signed by SHALINI LANDGE Date: 2022.04.18 17:32:01 IST framed on 17.08.2017 and after a lapse of almost three years, the amendment 4 application was filed without assigning any reason for delay in filing the application. There is no relief with respect to declaration sought in the matter. Only injunction has been sought in the matter. It is a settled proposition of law that the mutation does not confer any title over the property in question. This is a suit of injunction and the proceedings are stayed by the learned trial court then everything has to be stand still.
In such circumstances, allowing an application under Order 6 Rule 17 of the CPC was not required in the matter. Order regarding mutation can very well be challenged by the respondents before the SDO. An appeal without availing the alternative and efficacious remedy to file the present petition seeking quashment of the mutation order is not permissible in the pending civil suit.
As far as application under Order 7 Rule 14 of the CPC is concerned, the documents which are prayed to be taken on record were already in possession of the respondent no.1/plaintiff from the very beginning but he has chosen not to file those documents before the courts. It is only after the completion of the evidence lead by the respondent no.1/plaintiff and after closing the evidence of respondent no.1/plaintiff such application has been filed. The application does not show the relevance of these documents with the present civil suit itself. The learned trial court again in a very casual manner has allowed these applications. In another application under Order 6 Rule 17 of the CPC being filed seeking an amendment to the effect that by way of second amendment application they are also claiming the declaration in the property in question and further prayed that the mutation order dated 11.10.2012 be declared as null and void and the same be set aside.
It is argued that allowing the aforesaid application will virtually amount to changing the nature of the civil suit as the initial civil suit was filed only for injunction. The cross-examination of the respondent no.1/plaintiff is already over. After closing of the evidence of the respondent no.1/plaintiff such application has been filed without showing due diligence that why such application and why such pleadings are not placed in the plaint at the very initial stage.
Signature Not VerifiedPlacing reliance upon the judgements passed by the Hon'€™ble SAN Digitally signed by SHALINI LANDGE Supreme Court in the case of Kailash Vs. Nanhku and Others reported in 2005 Date: 2022.04.18 17:32:01 IST (4) SCC 480 and in the case of L.C.Hanumanthappa through LR's Vs. H.B. 5 Shivakumar reported in 2016 (1) SCC 332, it is argued that no such application can be allowed as the same is hit by the proviso under Order 6 Rule 17 of the CPC. The cause of due diligence is required to be explained by the respondent no.1/plaintiff. In such circumstances, he has prayed for setting aside all the three impugned orders.
Per contra, counsel appearing for the respondent no.1/plaintiff has supported the impugned orders and has submitted that the learned trial court has rightly allowed these applications. The first application has been filed prior to the evidence of respondent no.1/plaintiff; therefore, the same was allowed by the trial court. The document filed by way of second application is a public document which can always be considered. No cross-examination is required on those documents. The third application which has been filed is for consequential relief when the first application was already allowed as a consequence, this application was considered by the trial court. The amendment can be carried out at any stage of proceedings; therefore, the trial court has not committed any error in allowing these applications. He has prayed for dismissal of the writ petition stating herein that this is the petition under Article 227 of the Constitution of India having a limited scope of interference as this court is exercising the supervisory jurisdiction. The aforesaid aspect was considered by this court in the case of Shalini Shyam Shetty Vs. Rajendra Shhankar Patil reported in (2010) 8 SCC 329.
Heard the learned counsel for the parties and perused the record. On perusal of the record, it is seen that the civil suit was filed for injunction. After filing of the written statement, specifically denying the title of the respondent no.1/plaintiff and the issues were framed by the learned trial court on 17.08.2017. After framing of the issues, the first application for amendment was filed seeking amendment in the mutation proceedings order passed by the Tehsildar will be set aside. Application is totally silent regarding the death of Imrat Lal i.e. father of the respondent no.1/plaintiff and what is the date of the mutation order, nothing has been mentioned in the application. Even, it is not mentioned that what is the relevance of staying these proceedings or quashing the order passed by the Signature Not Verified SAN Digitally signed by SHALINI LANDGE Date: 2022.04.18 17:32:01 IST Tehsildar as the alternative and efficacious remedy of filing an appeal against the 6 mutation order before the learned SDO is available to the petitioner under the M.P. Land Revenue Code, 1959. Without there being any challenge whether the order passed in mutation proceedings passed by the Tehsildar was put to challenge by the respondent no.1 at any point of time is also not reflected from the application.
In such circumstances, the civil suit is only for injunction. There is no declaration sought by the respondent no.1/plaintiff. In such circumstances, allowing the application in a casual manner without assigning any reasons thereof is illegal. Second application which has been filed is after the closure of evidence of the respondent no.1/plaintiff. When the defendants have already cross examined the respondent no.1/plaintiff what was the relevance of filing an application under Order 7 Rule 14 of the CPC for bringing such documents on record i.e. Birth Certificate, Adhaar Card, Voter ID, Class-VIII mark-sheet, Transfer Certificate, High School Mark-sheet, Adhaar Card of his mother. The application is silent about the relevance of these documents in the civil suit. The aforesaid application is being filed after closure of the respondent no.1/plaintiff evidence, no such reasons have been assigned and no relevancy has been pointed out. The learned trial court in a most casual manner has allowed this application. Although the documents may be the public documents but they were in possession of the respondent no.1/plaintiff from the very beginning and he has chosen not to file these documents at the initial stage. The civil suit was filed in the year 2013 and after a lapse of almost 4-5 years, this application has been filed which itself is illegal without there being any reasons for bringing these documents on record. The relevance of the documents as well as the application is required to be shown by the respondent no.1/plaintiff but the same has not been shown.
Order 6 Rule 17 of the CPC is required to be seen, which reads as under:-
"17. Amendment of pleadings-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the Signature Not Verified real questions in controversy between the parties:SAN Digitally signed by SHALINI LANDGE
Provided that no application for amendment shall be allowed after Date: 2022.04.18 17:32:01 IST the trial has commenced, unless the Court comes to the conclusion that 7 in spite of due diligence, the party could not have raised the matter before the commencement of trial."
The proviso to the application clearly stipulates that after commencement of the trial, normally the amendment should not be allowed and if it is required, learned trial court is required to record the reasons for allowing the amendment. No such reasons are being pointed out. The fact that the commencement of the trial starts with framing of issues in the matter. Admittedly, the issues have been framed in the matter on 17.08.2017. The aforesaid aspect was considered in the case of Kailash (supra) and in paragraph-13 the court has held as under:-
"13. At this point the question arises : When does the trial of an election petition commence or what is the meaning to be assigned to the word 'trial' in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and upto the date of decision therein are included within the meaning of the word 'trial'."
The due diligence is required to be explained by the respondent no.1/plaintiff. In absence of explanation to any due diligence in not filing the amendment application in time and not bringing the aforesaid documents on record at the relevant time coupled with the fact that the relevancy of these documents is required to be seen. The learned trial court has not mentioned any reasons for allowing the application. In a casual manner, the applications have been allowed without assigning any reason.
The Hon'ble Supreme Court in the case of Abdul Rehman and Another Vs. Mohd. Ruldu and Others reported in 2012 (11) SCC 341 has held as under:-
Signature Not Verified SAN Digitally signed by SHALINI LANDGEDate: 2022.04.18 17:32:01 IST 10. Before considering the factual details and the materials placed 8 by the appellants praying for amendment of their plaint, it is useful to refer Order VI Rule 17 which is as under:-
17. Amendment of pleadings. €ÂÂ"The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be 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.
It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
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 Signature Not Verified of the case that come before them and should, consequently, allow all SAN Digitally signed by SHALINI LANDGE amendments that may be necessary for determining the real question in Date: 2022.04.18 17:32:01 IST controversy between the parties provided it does not cause injustice or 9 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 minimize 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 circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Others vs. Gattu Mahesh and Others, (2012) 2 SCC 300 and Rameshkumar Agarwal vs. Rajmala Exports Pvt. 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."
Further in the case of M. Revanna Vs. Anjanamma and Others reported in 2019 (4) SCC 332, the Hon'ble Supreme Court has specifically denied allowing of application without there being any plausible explanation for the delay in filing such an application. By way of amendment application virtually, they are seeking a declaration of title which itself is changing the very nature of the civil suit itself.
In such circumstances, learned trial court has committed an error in allowing the application for amendment and application for taking documents on record without there being any plausible explanation and showing any relevancy of these documents. In absence of any challenge to the order passed by the Tehsildar in the mutation proceedings which is not reflected from any of the applications, the orders impugned passed by the learned trial court are bad in law. The orders are hereby set aside.
The learned trial court is directed to proceed in the matter as if the applications have never been allowed.
Interim order passed by this court on 10.12.2018 stands vacated. Petition stands allowed.
No order as to costs.
Signature Not Verified SAN Digitally signed by SHALINI LANDGE (VISHAL MISHRA)JUDGE Date: 2022.04.18 17:32:01 IST Sha 10 Signature Not Verified SAN Digitally signed by SHALINI LANDGE Date: 2022.04.18 17:32:01 IST