Madhya Pradesh High Court
Pawan Kumar vs Prahalad Das on 9 September, 2024
NEUTRAL CITATION NO. 2024:MPHC-IND:26153
1 M. P. No.2035/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 9th OF SEPTEMBER, 2024
MISC. PETITION No. 2035 of 2023
PAWAN KUMAR AND ANOTHER
Versus
PRAHALAD DAS
...............................................................................................
Appearance:
Shri Akhil Godha - Advocate for the petitioners.
Shri Dilip Kshirsagar - Advocate for respondent.
..............................................................................................
ORDER
This miscellaneous petition under Article 227 of the Constitution of India is preferred challenging the order dated 29/03/2023 (Annex.-P/7) in RCS-A No./98/2015 by I Civil Judge, Senior Division, Neemuch (M.P.), whereby applications of the petitioners / plaintiffs under Order XIV Rule 5 read with Section 151 of CPC, Order VI Rule 16 read with Section 151 of CPC and Section 151 of CPC (cumulatively annexed as Annex.-P/6) have been rejected.
02. The facts in brief are that petitioners / plaintiffs filed a civil through plaint (Annex.-P/1) for mandatory injunction regarding three rooms with late- Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 13-09-2024 13:09:06 NEUTRAL CITATION NO. 2024:MPHC-IND:26153 2 M. P. No.2035/2023 bath of Garden No.14-A, Neemuch City Road, Neemuch, the boundary of which are described in para 12-A of the plaint, with mesne profit of Rs.3,000/- per month. The respondent / defendant filed written statement and also counter claim vide Annex.-P/2 for permanent injunction, declaration that wills dated 01/10/1992 and 20/12/2004 does not confer any right to the petitioners / plaintiffs and for demarcation of the suit property as per partition deed dated 27/10/1986.
03. The trial Court framed eight issues and dismissed the suit as well as counter claim vide judgment and decree dated 25/09/2019 (Annex.-P/4) and an appeal was preferred by the petitioners / plaintiffs only and First Appellate Court vide judgment and decree dated 30/09/2021 (Annex.-P/5) in RCA No.01A/2020 allowed the appeal partly and by setting aside the impugned judgment and decree remanded the case to the trial Court with following directions:
"a) Appellants/plaintiffs are required to file map of the entire garden demarcating the share and possession of each party by making making amendment in the plaint.
Respondent/defendant should also be given an opportunity to file a map contrary to it.
b) Both the parties shall be given opportunity to lead evidence with regard to the said maps.
c) Thereafter the learned Trial Court shall pronounce the judgment taking the admission and evidence available on the record into consideration."
Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 13-09-2024 13:09:06 NEUTRAL CITATION NO. 2024:MPHC-IND:26153 3 M. P. No.2035/2023
04. Before the trial Court, when the matter was proceeded petitioners / plaintiffs filed above mentioned three applications and trial Court rejected the applications. Challenging the legality of the impugned order, this petition has been preferred on the grounds that trial court without considering the Commissioner's report has passed the impugned order which is illegal and against the provision of law. Trial court without considering the provision of Order VI Rule 16, Order XIV Rule 5 and Section 151 of CPC has dismissed the application of the petitioners illegally, arbitrary and contrary to the record. Further, the trial Court without considering the facts and circumstance of the case and the change circumstances after passing the remand judgment of the appellate court has passed the impugned order, which is prima facie illegal, arbitrary and without jurisdiction.
05. Learned counsel further submits that the impugned order passed by the trial court dismissing the applications filed by the petitioners under Order VI Rule 16 of CPC for deletion of the pleading of the counter claim filed by the defendant, Order XIV Rule 5 of CPC for deletion of the issues arising out of counter claim and Section 151 of CPC is illegal arbitrary and against the provision of law. The trial court has erred in not considering the fact that in the present case along with the written statement the respondent has also filed the counter claim and by the judgment and decree passed by the trial court, the Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 13-09-2024 13:09:06 NEUTRAL CITATION NO. 2024:MPHC-IND:26153 4 M. P. No.2035/2023 counter claim of the respondent was dismissed and against the said judgment and decree the respondent neither preferred any appeal nor preferred any cross objection in the appeal preferred by the petitioners, therefore, the finding recorded by the trial court so far as it relates to the counter claim remain intact and final against the respondent and the same was also observed by the appellate court in the judgment and decree passed by the appellate Court despite this has erred in dismissing the application filed by the petitioners under Order VI Rule 16 of CPC for deletion of the pleadings with regard to the counter claim and application under Order XIV Rule 5 of CPC for deletion of the issues arises on the basis of the counter claim as mentions in the applications.
06. Learned counsel further submits that the trial Court without examining the effect of the judgment and decree passed by the appellate Court and without examining the provision of the Order VI Rule 16 and Order XIV Rule 5 of CPC has erred in holding that according to the record the respondent has filed the counter claim and issues are already framed and appellate court has directed the trial Court to decide the matter on the document produced by leading the evidence, therefore, the application filed by the petitioners under Order VI Rule 16 and Order XIV Rule 5 of CPC have been dismissed. The said finding recorded by trial Court is perverse, illegal and arbitrary and also Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 13-09-2024 13:09:06 NEUTRAL CITATION NO. 2024:MPHC-IND:26153 5 M. P. No.2035/2023 with mala fide intention. The trial court without assigning any reason has dismissed the application filed by the petitioner.
07. It is submitted by counsel for the petitioners that the trial Court has erred in dismissing all the three applications filed by the petitioners holding that the all the applications filed by the petitioners are in order to delay the proceeding and dismissed the same by imposing the cost of Rs.5,000/- in total without considering the nature and effect of the application and the reason mention in the application. The issue raised by the petitioners by way of the applications is necessary to decide the controversy between the parties and particularly the rights of the petitioners. The trial court has erred in not considering the fact that the finding recorded by the trial court with regard to the counter claim of the respondent are remained intact, therefore, the mixed issued which related to the counter claim and plaint are need to be discarded and deleted and the trial Court is required to give finding only of the basis of the issues arising out of the plaint and the direction given by the appellate Court.
08. Learned counsel submitted that the trial court has erred in dismissing the application filed by the petitioner under Section 151 of CPC for recalling the order dated 16/01/2023, whereby the application filed by the respondent for consequential amendment has been allowed. It is necessary to mention Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 13-09-2024 13:09:06 NEUTRAL CITATION NO. 2024:MPHC-IND:26153 6 M. P. No.2035/2023 here that on 16/01/2023 the respondent has filed an application for consequential amendment and the same was allowed by recording the petitioners consent, however, on the said date the petitioners sought time for filling the reply to the said application filed by the respondent, thereafter, the learned trial court fixed the case for consequential amendment and for evidence, thereafter, when the petitioners filed the reply to the said application then the learned trial Court has fixed the case for arguments and order on application under Order VI Rule 17 of CPC. It is necessary to mention here that the learned trial Court has already allowed the said application of the respondent for consequential amendment on 16/01/2023. It is also necessary to mention here that when the petitioners filed the present application under Section 151 of CPC raising the objection, the trial court has dismissed the said application. It is necessary to mention here that the learned trial Court on 28/01/2023 again mark the absence of the petitioners though the petitioners were present in Court and when the petitioners objected the trial court has continued the proceeding at 04:00 PM and marked the presence of the counsel of the petitioners. The entire scenario indicates some unwanted thing which is illegal and against the provision of law. The learned trial court is proceeding in the matter on day to day basis and imposing the cost ignoring the legal Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 13-09-2024 13:09:06 NEUTRAL CITATION NO. 2024:MPHC-IND:26153 7 M. P. No.2035/2023 position of the case. On these grounds, learned counsel prays for setting aside the impugned order.
09. On the other hand, learned counsel for the respondent / defendant has opposed the prayer.
10. Heard learned counsel for the parties and perused the record and also the applications that were preferred by the petitioners / plaintiffs and rejected by the trial Court.
11. Through the application under Order XIV Rule 5 read with Section 151 of CPC it was prayed that issues No.3 to 7 be deleted partially to the extent they relate respondent / defendant and issue No.8 be deleted in toto. The application under Order VI Rule 16 read with Section 151 of CPC was preferred with a prayer that counter claim be removed from the file and third application under Section 151 of CPC was preferred with a prayer that respondent / defendant be not permitted to incorporate consequential amendment. Accordingly, order allowing the consequential amendment dated 16/01/2023 be set aside.
12. The petitioners / plaintiffs have referred Ramabai and Others Vs. Harbilas and Other reported in 1996 (1) MPJR 390, Smt. Kishori Devi and Others Vs. Rameshwar Prasad reported in AIR 2017 Patna 187, order dated 21/09/2015 passed by High Court of Madhya Pradesh, Jabalpur in Second Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 13-09-2024 13:09:06 NEUTRAL CITATION NO. 2024:MPHC-IND:26153 8 M. P. No.2035/2023 Appeal No.2100/2005 (Nandlal and Others Vs. Bhura (Dead) through LR and Anr.), Banarasi Vs. Ram Phal reported in AIR 2003 SC 1989 and Harbans Singh and Others Vs. Sant Hari Singh and Others reported in (2009) 2 SCC 526.
13. Firstly, the Court is referring to the issues framed by the trial Court in para 12 of the judgment as follows:
**12& izzdj.k esa izLrqr nLrkostksa ,oa lk{; ds vk/kkj ij fuEu fopkj.kh; iz'u fufeZr fd;s x;s ftudk ldkj.k fujkdj.k dj mudk fu"d"kZ muds le{k vafdr fd;k tk jgk gS& okn iz'u dz- okniz'u fu"d"kZ 01 D;k oknh ds caxyk uacj 14&, fLFkr oknxzLr **izekf.kr ugha** rhu dejs e; ysfVªu&ckFk:e ¼ftldh prqlhZek okni= pj.k dafMdk 5 esa n'kkZbZ xbZ gS½ esa izfroknh vuqefr /kkjd dh gSfl;r ls vkf/kiR;
ersa gS\ ;fn gka rks D;k oknh mijksDr fjDr Hkkx dk vkf/kiR; izkIr djus dk vf/kdkjh gS\ 02 D;k oknh nkok izLrqfr fnukad ls fjDr vkf/kiR; **izekf.kr ugha** fnukad rd e/;orhZ ykHk Lo:i 3000@& :i;s ekfld izkIr djus dk vf/kdkjh gS\ 03 D;k oknh iou o vuhrk ds i{k esa fu"ikfnr **gka izekf.kr** olh;r fnukad 01-10-1992 rFkk 20-12-2004 voS/k O;FkZ o izfroknh ds fgr eqdkcys 'kwU; gS\ 04 D;k oknhx.k izfroknh dks caxyk uacj 14&, **izekf.kr ugha** fLFkr dq, ds mi;ksx o miHkksx esa ck/kk mRiUu dj jgs gS\ 05 D;k izfroknh caVokjk fnukad 27-10-86 vuqlkj **izekf.kr ugha** Lfky ij leku Hkkx dk lhekadu djkus rFkk lhekfpUg vafdr djkus gsrq O;kns'k ikfjr djkus dk vf/kdkjh gS\ 06 D;k oknh }kjk nkos dk rFkk izfroknh }kjk **gka izekf.kr** Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 13-09-2024 13:09:06 NEUTRAL CITATION NO. 2024:MPHC-IND:26153 9 M. P. No.2035/2023 izfrnkos dk mfpr ewY;kadu dj Ik;kZIr U;k;'kqYd lank;d fd;k x;k gS\ 07 lgk;rk ,oa O;;\ **fu.kZ; dh dafMdk 57 da vuqlkj oknhx.k o izfroknhd dksbZ lg;rk izkIr djus ds vf/kdkjh ugh gS** 08 D;k izfroknh ds LokfeRo ,oa vkf/kiR; ds rhu **izekf.kr ugha** dejksa ds lkeus cus cjkens ds ckn [kqys Hkkx ds eq[; Lfkku ij yxs pSuy xsV dks gVkdj o irjs yxkdj oknhx.k us izfroknh dk vius dejksa esa tkus dk jkLrk can dj fn;k gS\
14. The petitioner No.1 and respondent No.1 are the real brothers and the property regarding which the litigation came to the fore was of family property regarding which both have put forth their claims and plaintiffs have pleaded the registered partition dated 27/10/1986 and wills dated 01/10/1992 and 20/12/2004. Respondent / defendant have incorporated all the facts in his written statement also regarding which he filed counter claim. Accordingly, the issues as framed will be required to decide, even in the absence of counter claim as the same facts have been stated in the written statement also. The direction of First Appellate Court are reproduced in para 3 of this order. When the plaintiffs are given opportunity to file map of the entire garden demarcating the share and possession of each party by making amendment in the plaint and the respondent / defendant has also been given opportunity to Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 13-09-2024 13:09:06 NEUTRAL CITATION NO. 2024:MPHC-IND:26153 10 M. P. No.2035/2023 file a map contrary to it, then consequential amendment cannot be denied. There is no illegality in rejecting the application under Section 151 of the CPC.
15. Considering the directions of remand, nature of dispute and the defence in written statements, the order of the trial Court in rejecting the application under Order XIV Rule 5 of CPC and under Order VI Rule 16 of CPC and Section 151 of CPC also does not require to be interfered in this petition on the strength of judgments relied upon by the petitioners in this petition.
16. Accordingly, this miscellaneous petition being devoid of merit is hereby dismissed.
Certified copy as per rules.
(GAJENDRA SINGH) JUDGE Tej Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 13-09-2024 13:09:06