Madhya Pradesh High Court
Radheshyam vs Jagdish on 2 February, 2018
14
THE HIGH COURT OF MADHYA PRADESH
M.P. No. 1373/2017
(Radheshyam vs. Jagdish)
INDORE;Dated: 02/02/2018
Shri A.S. Garg learned senior counsel with Ms. P.
Mahajan, learned counsel for the petitioner.
Shri J.B. Mehta, learned counsel for the respondent.
The petitioner has filed the present petition being aggrieved by order dated 20.11.2017 passed by Civil Judge Class- I, Khategaon, District Dewas by which application under Order 6 Rule 17 read with Section 151 of C.P.C. has been rejected. Facts of the case in short as under:
The petitioner being a plaintiff Radheshyam S/o Sitaram had filed a suit against the Jagdish S/o Shivlal Gurjar seeking decree of declaration of title and permanent injunction. As per pleading in the plaint, the plaintiff and defendant are members of joint Hindu family. Father of plaintiff and father of defendant are real brother and both have expired.
According to the plaintiff, he received land survey No. 188, 281 total 1.99 hec. of village Maalsagoda, Tehsil Khategaon, District Dewas after the partition. But by mistake the name of the defendant No.1 had been mutated at the time of settlement of the land. Before partition the said land was in possession and ownership of the plaintiff. The plaintiff filed an application before Tehsildar for partition in which vide orde rdated 31.03.2006 the partition was accepted and the name of the parties were recorded in the revenue record.14
and thereafter plaintiff has started cultivation.
The defendant first time on 23.03.2015 has tried to make interference into possession of plaintiff which gives cause of action to him to file the Civil Suit.
After notice, the defendant filed the written statement by submitting that the land survey No. 264,188 and 281 apart from other land are recorded in his name. He denied the order of Tehsildar dated 31.03.2006 passed in respect of partition. He has claimed possession and ownership over the suit land. He has filed counter claim seeking relief that the order of Tehildar dated 31.03.2006 be declared as void and claimed possession of house and the land.
The plaintiff filed an application under Order 6 Rule 17 of C.P.C. dated 26.12.2015 seeking amendment by way of para insertion of 7.A in the plaint because the defendant sought declaration about the order of partition dated 31.03.2006. Application for amendment was allowed and the plaintiff has incorporated amendment in the plaint.;
The defendant No.1 filed an application under Section 151 of C.P.C. that the plaintiff did not incorporate the same amendment which was allowed by the Court. In place of word plaintiff he has mentioned word defendant No.1 and vice-versa, therefore he be directed to correct the amendment in the plaint as per his application filed under Order 6 Rule 17 of C.P.C. Vide order dated 03.11.2017 the learned Trial Court allowed the application and directed the plaintiff to correct the amendment in para 7.A of the plaint.14
Later on, the plaintiff has filed an application under Order 6 Rule 17 of C.P.C. seeking amendment in the application dated 26.12.2015 that there was a typing mistake as in place plaintiff word defendant No.1 has been mentioned and in place of defendant the word plaintiff has been mentioned.
The aforesaid amendment has opposed by the defendant and vide order dated 07.11.2017 the learend Trial Court has rejected the application dated 15.11.2017 on the ground that the earlier application dated 26.12.2015 has been disposed of , therefore no amendment can be made.
Now, the plaintiff has again filed an application under Order 6 Rule 17 of C.P.C. seeking correction / amendment in para 7.A of the plaint which was incorporated by way of amendment. The application was opposed by the defendant No.1 and vide impugned order dated 20.11.2017 the learned Trial Court has rejected the application. Hence, present petition before this Court.
Shri Garg, learned senior counsel appearing on behalf of plaintiff/ petitioner submitted that it was bonafide mistake on part of the junior counsel as in place of plaintiff he has mentioned the word defendant No.1 and vice-versa , therefore, learned Trial Court instead of entering into the technicalities ought to have been allowed the application and said amendment will not change the nature of the suit relief and claimed and issue between the parties. The amendment sought is formal in nature, still the parties are having right to 14 prove their case by way of evidence therefore, no prejudice is going to cause if amendment is allowed in the plaint.
Shri J.B. Mehta, learned counsel appearing on behalf of the respondents vehemently refuted the argument of Shri Garg by submitting that by way of pleading plaintiff has admitted the possession and ownership of the defendant No.1 in the plaint and now malafidely he want to withdraw that amendment and due to which certainly the prejudice is going to be cause to the defendant. The pleadings once made cannot be permitted to withdraw in the plaint, therefore, the learned Trial Court has rightly rejected the application.
He further submitted that even otherwise, the scope of interference in exercise of jurisdiction under Article 227 of Constitution of India is limited. The Supreme court in the matter of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 has held that High court in exercise of its power of superintendence cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. The High court can exercise this power when there has been a patent perversity in the orders of tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
Hence prayed for dismissal of the writ petition. In order to decide the controversy between the parties the para 7.A within correct description of plaintiff and defendant No.1 is reproduced below:-
14" 7 v- ;g fd oknh ,oa izfroknh ds firk nksuks lxs HkkbZ jgs gS ,oa nksuks us jktkth jktkSj okyks ls nkfo;k tehu dz; dh gSA izfroknh dz- 1 ds firk f'koyky us oknh ds firk lhrkjke dks vkilh cVokjs ds le; 5 ,dM tehu vf/kd nh Fkh D;ksfd izfroknh dz- 1 ds firk lhrkjke dks iMr ,oa xkao ls nwj tehu nh xbZ FkhA nkfo;k ikap ,dM tehu izfroknh dz- 1 dks mlds LoxhZ; firk lhrkjke ls fojklr esa izkIr gqbZ gS [kljk ua- 188 dh Hkwfe esa oknh ds ekydh ,oa dCts dk ikWp p'es dk edku cuk gqvk gSA ftlesa oknh dh [ksrh dh Qly ,oa lkeku Hkwlk o eos'kh ckW/kus ds dke vkrk gSA bl Hkwfe ij izfroknh dz- 1 ds firk tc rd thfor jgs ekfyd ukrs ls mi;ksx ysrs jgs ,oa firk dh e`R;q ds ckn vkt rd izfroknh dz- 1 ekfyd ukrs ls mi;ksx ys jgk gS nkfo;k Hkwfe dh rksth Hkh izfroknh dz- 1 vnk djrk gSA nkfo;k Hkwfe esa oknh ,oa mlds LoxhZ; firk f'koyky ds dksbZ gd ,oa LoRo ugh jgs gSA ijUrq izfroknh dz-1 ds }kjk izfrnkok is'k djds oknh ds gdks dks pqukSrh nh xbZ gSA blfy;s oknh dks Hkh ?kks"kukRed fMdzh ekaxuk vko';d gks x;k gSA blfy;s oknh us LoRo ?kks"k.kk gsrq izfroknh ds fo:) ;g nkok yxk;k gSA '' In 5th and 7th line of the aforesaid para the name of the father of defendant No.1 is written as Sitaram whereas the correct name is Shivlal and Sitaram is the father of the plaintiff. The plaintiff wanted to say that " Sitaram" father of the plaintiff was given the land away from the village and the plaintiff has received 5 acre land by way of succession from his father Sitaram but inadvertently in place of word plaintiff the word of defendant No.1 has been typed but the father's was rightly written because the name of father of defendant No.1 is Shivlal Gurjar .Likewise in line 11th , 13th and 14th again in place of plaintiff word defendant No.1 has been typed because these 3 line cannot be read in isolation because entire paragraph the intention of plaintiff is to say that his father Sitaram was in possession and after his death 14 he received by way of succession and using the land as owner. In 14th line the plaintiff has wanted to plead that the defendant and his late father Shivlal are not having any title over the suit land. The name of the father of defendant No.1 has rightly been mentioned but in place of defendant No.1, the word plaintiff has wrongly been used but in 16 th line the word defendant No.1 has rightly be used. From conjoint reading of each and every line in para 7.A it is reflected that there is a typing mistake in place of plaintiff the word defendant No.1 has been typed some place and at one place in place of defendant No.1 the word plaintiff has been typed.
Therefore, in view of the above the learned Trial Court has wrongly rejected the application. The Apex Court in case of Chakreshwari Construction Pvt. Ltd vs. Manohar Lal 2017 (3) M.P.L.J.SC has held that parties are permitted to amend their pleadings at any stage not only during pendency of trial but also at first and second appellate stage with leave of Court provided amendment proposed is bona fide, relevant and necessary for deciding rights of parties involved in lis. Operative part of judgment is reproduced below:
" 14. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. In the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons and others, 2009 MPLJ Online (S.C.) 8= (2009) 10 SCC 84, this Court, after examining the entire previous case law on the subject, culled out the following principle in para 63 of the judgment which reads as under:14
" 63 On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment;
(1). whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5)whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6, Rule 17. These are only illustrative and not exhaustive."
16. It is for the reasons that firstly, the amendment proposed did not change the nature of the case originally set up by the appellant in the eviction petition; Secondly, the amendment did not introduce any fresh cause of action; Thirdly, the amendment was relevant for deciding the question of subletting and availability of alternative accommodation with the respondent; Fourthly, the facts proposed in the amendment not being in the personal knowledge of the appellant and having obtained from the concerned State Department recently, the same could be allowed to be brought on record for its consideration; Fifthly, no prejudice was likely to be caused to the respondent in such eventuality would have got an opportunity to make consequential 14 amendment in his written statement and file additional documents in rebuttal; and lastly, in order to prove the case, the amendment proposed and permission to file documents should have been granted."
The contention of Shri Mehta are correct that the parties are not permitted to withdraw the admission made in the pleading but it is not case of withdrawal of the pleading, it is the case of correction of typing mistake in the application for amendment and the same is bonafide not intentionally. So far the issue of possession and other issues are concern still burden lies of the plaintiff to prove his possession and defendant can also prove his possession by way of evidence, therefore this correction/ amendment in pleading may not be construed that this court has recorded finding in respect of the possession either plaintiff or defendant.
In view of the above, the petition is allowed with costs of Rs. 5,000/- payable to the defendant.
Certified copy as per Rules.
(VIVEK RUSIA) JUDGE Praveen