Madhya Pradesh High Court
Idrees Hasan vs Shabbeer Hasan on 9 September, 2022
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1 WP No.5365 of 2017
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 9th OF SEPTEMBER, 2022
Writ Petition No.5365 of 2017
Between:-
IDREES HASAN S/O LATE YUSUF HASAN
AGED ABOUT 60 YEARS, OCCUPATION
AGRICULTURIST, R/O VILLAGE SARRA,
TEHSIL GAIRATGANJ, DISTRICT RAISEN,
(M.P.)
.....PETITIONER/PLAINTIFF
(BY MR. SANKALP KOCHAR, ADVOCATE)
AND
1. SHABBEER HASAN S/O LATE KHALEEL
HASAN AGED ABOUT 58 YEARS,
OCCUPATION SHOPKEEPER, R/O WARD NO.2,
NEAR CHHOTI MASJID, TEHSIL
GAIRATGANJ, DISTRICT RAISEN (M.P.)
2. SHAFIQ HASAN, S/O KHALEEL HASAN, AGED
ABOUT 45 YEARS, OCCUPATION HAIR
CUTTING SALON AND SHOPKEEPER, R/O
KASAI MANDI, TEHSIL GAIRATGANJ,
DISTRICT RAISEN.
3. LAIK HASAN S/O KHALEEL HASAN AGED
ABOUT 40 YEARS, OCCUPATION BRICK
MANUFACTURER AND SUPPLIER R/O KASAI
MANDI, TEHSIL GAIRATGANJ, DISTRICT
RAISEN (M.P.)
4. STATE OF MADHYA PRADESH THROUGH:
COLLECTOR RAISEN DISTRICT RAISEN (M.P.)
2 WP No.5365 of 2017
5. SHAMEEM HASAN S/O LATE YUSUF HASAN
AGED ABOUT 50 YEARS, OCCUPATION
AGRICULTURIST R/O VILLAGE SARRA,
TEHSIL GAIRATGANJ, DISTRICT RAISEN
(M.P.)
6. YUNUS KHAN S/O LATE YUSUF HASAN
AGED ABOUT 40 YEARS, OCCUPATION
AGRICULTURIST, R/O VILLAGE SARRA,
TEHSIL GAIRATGANJ, DISTRICT RAISEN
(M.P.)
.....RESPONDENTS
(RESPONDENT NOS.1, 2 AND 3 BY MR. R.B. PATEL,
ADVOCATE)
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This petition coming on for hearing this day, the court passed the following:
(O R D E R) By the instant petition filed under Article 227 of the Constitution of India, the petitioner/plaintiff no.1 is questioning the legality, validity and propriety of the order 11.01.2017 (Annexure-P/5) passed by the Court below in a pending Civil Suit No.32A/2010 whereby an application preferred by the plaintiff/petitioner under Order 6 Rule 17 of the Code of Civil Procedure has been rejected by the Court below mainly on the grounds that suit has already been commenced; the application was filed by the plaintiff belatedly and as per the rider imposed by way of proviso appended with Order 6 Rule 17 of the CPC, the application cannot be allowed.
2. As per facts of the case, a suit was filed by 3 WP No.5365 of 2017 plaintiff no.1/petitioner and respondents no.5 & 6 herein claiming relief of declaration and permanent injunction in relation to the suit property described in paragraphs 2 and 3 of the plaint. A copy of the plaint is available on record as Annexure P/1.
3. During the pendency of the suit, the plaintiffs no.2 and 3 (respondents no.5 and 6 herein) in collusion with defendant no.1 kept four acres of land for themselves and given possession of remaining four acres to defendant no.1. There was an appeal pending before learned Additional District Judge (Fast Track) Begumganj registered as Misc. Appeal No. 13/2009 in which on 24.07.2012, an application was filed for withdrawing the appeal against defendant no.1 and they parted with possession of four acres of land given to defendant no.1 on 20.10.2012.
4. Thereafter, the plaintiff no.1/petitioner filed an application under Order 6 Rule 17 CPC for bringing the subsequent events on record and also sought prayer for possession of the land which has been handed over to defendant no.1 by plaintiffs no.2 and 3 (respondents no.5 and 6 herein) during pendency of the suit.
5. The said application was dismissed by the trial Court and, therefore, a writ petition, i.e. W.P. No. 1068/2016 was filed before this Court which was allowed vide order dated 10.05.2016 as amendment was found proper for fair adjudication of the lis.
6. A written-statement was filed by the defendants 4 WP No.5365 of 2017 opposing the claim made by the plaintiff no.1/petitioner.
7. The petitioner/plaintiff no.1 heavily relied upon hiba dated 01.12.1998 which has been reduced in writing on 07.08.1999 and while preparing the affidavits under Order 18 Rule 4 of CPC, the counsel for the plaintiff no.1 realized that some vital pleadings regarding legality and validity of Hibanama have been left out and only when certified copy of Hibanama was received on 27.10.2016, the application for amendment was filed by the plaintiff no.1 on 05.11.2016. A copy of the said application is available on record as Annexure P/3.
8. The amendment application was opposed by the defendants by filing reply dated 08.12.2016 (Annexure P/4) mainly on the ground of delay in filing the amendment application. The said application was dismissed by the trial Court vide impugned order dated 11.01.2017 (Annexure P/5). The trial Court rejected the application for amendment filed Order 6 Rule 17 of CPC mainly on the grounds that the suit was filed in the year 2009 and the Hibanama is of 1999 which was already filed in another suit filed in the year 2012 and was subject matter of the said suit. The issue in regard to that Hibanama had also been framed which clearly indicates that the plaintiff had full knowledge about the said Hibanama, despite that the same has not been filed by the plaintiff though various amendments in the plaint have been made and even an affidavit under Order 18 Rule 4 of CPC has also been filed and in such a circumstance, the Court has not found the 5 WP No.5365 of 2017 explanation given by the plaintiff no.1 sufficient that the pleadings have been left out under some misconception. The Court below, therefore, rejected the application observing that despite having an opportunity to make such an amendment and having knowledge about the Hibanama, since amendment was not sought in time and has been filed belatedly, therefore, it is not required to be accepted.
9. Shri Kochar, learned counsel for the petitioner submits that merely on the ground of delay, the amendment application cannot be rejected. He submits that in view of the law laid down by the Supreme Court and also by the High Court in number of occasions, it is clear that the proviso is directory but not mandatory and further, if the amendment is relevant and necessary for proper adjudication of the case, the same can be allowed even at the final stage of the suit. He has also tried to substantiate that the amendment which is sought to be brought in the pleadings of the plaint is necessary for proper adjudication of the case and, therefore, the impugned order passed by the Court below, rejecting the application is contrary to the settled principles of law. In support of his contention, learned counsel for the petitioner has placed reliance upon various judgments of the Supreme Court and also of this Court viz. (2017) 5 SCC 212 [Chakreshwari Construction Private Limited Vs. Manohar Lal]; (2008) 5 SCC 117 [Chander Kanta Bansal Vs. Rajinder Singh Anand]; (2006) 6 SCC 498 [Baldev Singh Vs. Manohar Singh]; (2006) 4 SCC 385 [Rajesh Kumar Aggarwal Vs. K.K. Modi]; (2002) 7 SCC 559 [Sampath Kumar Vs. 6 WP No.5365 of 2017 Ayyakannu] and (2012) 1 MPLJ 710 [Pushpa Arora Vs. Anita Arora].
10. Learned counsel for the petitioner submits that dealing with similar issue, the Supreme Court in the case of Chakreshwari (supra) has observed as under:-
"15. 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 State Department concerned 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, if the applications had been allowed because the respondent in such eventuality would have got an opportunity to make consequential 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.
16. It is true that there was some delay on the part of the appellant in filing the applications but, in our opinion, the appellant had explained the delay. One cannot dispute that in appropriate cases, the parties are permitted to amend their pleadings at any stage not only during the pendency of the trial but also at the first and second appellate stage with the leave of the court provided the amendment proposed is bona fide, relevant and necessary for deciding the rights of the parties involved in the lis."
11. He further submits that in case of Baldev Singh (supra), the Supreme Court in paragraphs 17 and 18 has held as under:-
7 WP No.5365 of 2017"17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings.
18. For the reasons aforesaid, we are of the view that the High Court as well as the trial court erred in rejecting the application for amendment of written statement. Accordingly, the orders of the High Court and the trial court are set aside and the application for amendment of written statement is allowed. The defendant-appellants are directed to file an amended written statement within a period of one month from the date of production of this order before the trial court positively. Considering the facts and circumstances of this case, we direct the trial court to dispose of the suit within a period of one year from the date of communication of this order to it. The appeals are allowed. There will be no order as to costs."
12. He also submits that in the case of Rajesh Kumar Aggarwal and others (supra), the Supreme Court in paragraphs 15 to 18 has held as under:-
"15. The object of the rule is that the courts should try 8 WP No.5365 of 2017 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.
16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.
17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.
18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court."
13. Again in the case of Sampath Kumar (supra) the Supreme Court in paragraphs 6, 7, 9, 10 and 11 has held as 9 WP No.5365 of 2017 under:-
"6. It is true that the plaintiff on the averments made in the application for amendment proposes to introduce a cause of action which has arisen to the plaintiff during the pendency of the suit. According to the defendant the averments made in the application for amendment are factually incorrect and the defendant was not in possession of the property since before the institution of the suit itself.
7. In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.
* * * * *
9. Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the 10 WP No.5365 of 2017 question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.
10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation- back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma v. Mamtha Shenoy [(2001) 8 SCC 561] .)
11. In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been 11 WP No.5365 of 2017 earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed."
14. He submits that this Court in case of Pushpa Arora (supra) in paragraphs 7 and 8 has held as under:-
"7. I have considered the submissions made on both sides. The Order 6, Rule 17 of the Code of Civil Procedure deals with amendment of pleadings. The application for amendment can be made at any stage of the proceedings by the parties to the suit. The application for amendment can be made before the trial is commenced or after the trial is commenced. The law relating to grant of amendment of pleading is well defined a catena of decisions of Supreme Court. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363 it has been held by the Supreme Court that all amendments ought to have been allowed which satisfy two conditions, namely, of not working injustice to the other side and of being necessary for the purpose of determining the real questions in controversy between the parties. In Savithri Amma v. Aratha Karthy, (1984) 1 SCC 668 :
AIR 1983 SC 319 it has been held that test for allowing the amendment is to find out whether the proposed amendment works in serious injustice to the other side. Similarly, in B.K Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712 it has been held that though it is true that amendment cannot be claimed as a matter of right, however, it is equally true that Courts while deciding the prayer for amendment should not adopt hyper-technical approach. The liberal approach should be the general rule particularly in cases where the other side can be compensated with costs. It has further been held that amendments in the pleadings to avoid uncalled for multiplicity of litigation should be allowed. It has also been held that a party cannot be allowed by way of amendment to set up a new case or a new cause of action particularly when a suit or new case or cause of action is barred. However, the power of the Court to 12 WP No.5365 of 2017 deal with the prayer for amendment if the trial is commenced is has been circumscribed by an amendment in the Code of Civil Procedure (Amendment) Act. The proviso to Order 6, Rule 17 of the Code provides 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, party could not have raised the matter before the commencement of trial.
8. The amended provisions of the Code of Civil Procedure have been considered by the Supreme Court in Salem Advocate Bar Association, T.N v.
Union of India, (2005) 6 SCC 344. The Supreme Court in Chander Kanta Bansal v. Rajinder Singh Anand, 2008 (4) MPU (S.C) 269 : (2008) 5 SCC 117 has held that the delayed amendment which appears to be afterthought should not be allowed. However, in deserving cases the Court can allow even a belated application for amendment, if other side can be compensated in terms of the cost. In Usha Devi (supra) it has been held that merits of amendment is not the relevant criteria while deciding the application for amendment. In Rajkumar Gurawara (Dead) through LRs. v. S.K Sarwagi and Company Pvt. Ltd., (2008) 14 SCC 364 it has been held that just and proper amendment can be introduced at any stage for the purpose of determining the real controversy involved in the suit. In South Konkan Distilleries v. Prabhakar Gajanan Naik, (2008) 14 SCC 632 it has been held that if the application for amendment is within limitation or there is an arguable case with regard to the question of limitation, the same should be allowed. However, time barred amendment should not be allowed. In Rajkumar Gurawara (supra) (2008) 14 SCC 364 the Supreme Court while drawing distinction between the pre trial and post trial amendment has further held that greater degree of prejudice is caused by amendments which are sought after commencement of the trial. It has further been held that prejudice likely to be caused depends upon the procedural stage at which the amendment is sought. It has been reiterated that it is a settled law that the grant of application for amendment shall be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) 13 WP No.5365 of 2017 when the amendment would result in introducing new cause of action and intends to prejudice the other party; and (iii) when allowing amendment application defeats the law of limitation. The basic principles with regard to dealing with the application for amendment have been stated by the Supreme Court in Revajeetu Builders and Developers v. Narayanaswamy and Sons, (2009) 10 SCC 84. In view of the well settled position dealing with the prayer for amendment of the pleadings the following important factors are required to be borne in mind by the Court dealing the application for amendment:--
(i) Whether the amendment is necessary for proper and complete adjudication of the controversy involved in the suit.
(ii) Whether the application has been made bona fide or with mala fide intention to protract the proceedings.
(iii) Whether the proposed amendment, if allowed, would cause any prejudice to either side which cannot be compensated in terms of money.
(iv) Whether by the proposed amendment a party is setting up a new case or cause of action which changes the nature and character of the case.
(v) The application for amendment should not be rejected merely on the ground that delay alone, if the other side can be compensated in terms of cost.
(vi) The amendment which is barred by limitation should not be allowed.
(vii) In case of post trial amendment, the Court has to come to the conclusion that in spite of due diligence party could not have raised the matter before the commencement of the trial."
15. On the other hand, Shri Patel, learned counsel for respondent Nos. 1, 2 and 3 has opposed the submissions advanced by learned counsel for the petitioner and submitted that the petitioner failed to substantiate as to how the amendment sought for is relevant for proper adjudication of 14 WP No.5365 of 2017 the matter. He has also submitted that the document i.e. Hiba dated 01.12.1998 deals with the property which in fact is not the subject matter of the suit. He has also drawn attention of this Court towards paragraph-2 of the plaint which deals with the property involved in the suit and also describes the subject matter of the suit. He has further submitted that the Hiba dated 01.12.1998 is irrelevant because it is not related with the property in question and as such, no amendment is required. He has also submitted that the amendment application does not describe as to what restrained the petitioner to make pleadings at the relevant point of time and as per the rider imposed, the petitioner failed to show the due diligence. According to learned counsel for respondent Nos.1, 2 and 3, impugned order does not call for any interference and this petition deserves to be dismissed. In support of his contention, he has placed reliance upon various judgments of the Supreme Court and also of this Court viz. Sampath Kumar (supra); Chander Kanta Bansal (supra); (2019) 4 SCC 332 [M. Revanna Vs. Anjanamma (Dead) By legal representatives and others] and W.P. No.4461/2012 [Avinash Kumar Rai Vs. Sushree Chhaya Rai and others].
16. As per counsel for the respondents, the respondents are mainly supporting the impugned order passed by the Court below on the ground that the Hiba dated 01.12.1998 deals with the property which is the subject matter of respective civil suit which has given rise to this petition, but it deals with the property which in fact is the subject matter of another civil suit, i.e. Misc. Appeal No. 19-A/2012 filed by the 15 WP No.5365 of 2017 present petitioner as a plaintiff and the said suit has been dismissed by the trial Court. However, in the present case, trial Court while considering the application filed under Order 6 Rule 17 CPC has neither considered the aspect that Hibanama dated 01.12.1998 is part of the plaint nor ascertained the fact that the property contained in the Hibanama is related with the suit property or not, but rejected the application only on the ground of delay. The trial Court even did not disclose as to what is the stage of the civil suit but from perusal of the impugned order, it reveals that the application under Order 18 Rule 4 of CPC has been filed by the plaintiff. So far as the case of Avinash Kumar Rai (supra) is concerned, the High Court in a writ petition filed under Article 227 of the Constitution of India involving validity of the order passed by the trial Court in a pending civil suit, rejecting an application filed under Order 6 Rule 17 read with Section 151 of CPC has finally observed that merely because an application for taking document on record is allowed, application for amendment ought to be allowed. According to the High Court, an application for amendment should be allowed only when the Court is satisfied that inspite of due diligence, the party could not introduce amendment before commencement of trial. In the said case, the High Court after placing reliance upon a judgment of the Supreme Court passed in case of Vidyabai and others Vs. Padmalatha and another (2009) 2 SCC 409 has also dealt with the scope of Article 227 of the Constitution of India and observed that jurisdiction under Article 227 of the Constitution of India cannot be exercised to correct the errors 16 WP No.5365 of 2017 of the subordinate Courts but it can be exercised where the order is passed in grave dereliction of duty and flagrant abuse of fundamental principle of law and justice. This observation has been made by the High Court, relying upon a decision of the Supreme Court in case of Jai Singh and another Vs. MCD (2010) 9 SCC 385 and Shalini Shetty Vs. Rajendra S. Patil (2010) 8 SCC 329. The High Court has further relied upon an order passed by the Co-ordinate Bench of this Court in case of Ashutosh Dubey and another Vs. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal and another 2004(2) MPHT 14 in which it is held by the High Court that supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the sub-ordinate Courts within the bounds of their jurisdiction. As per the High Court, the supervisory jurisdiction can be exercised under the circumstance when error pointed out is manifest and apparent on the fact of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.
17. Shri Patel, learned counsel for the respondents further argued on the point that the hiba dated 01.12.1998 is irrelevant for proper adjudication of the lis pending in the respective civil suit because that relates to the property which is not the subject matter of the suit. He further submits that another civil suit, i.e. i.e. Misc. Appeal No. 19-A/2012 was filed by the present petitioner/plaintiff no.1 claiming right over the property by virtue of hibanama dated 01.12.1998 and 17 WP No.5365 of 2017 that hibanama has not been found proved in the said civil suit and no right by virtue of said hibanama was given to the petitioner/plaintiff no.1. The suit was also dismissed by the trial Court and as such, amendment is irrelevant because that in fact increases the scope of subject matter of the civil suit and, therefore, according to him, the application has rightly been rejected.
18. In response to the aforesaid, learned counsel for the petitioner submits that due diligence is not only the relevant aspect of the matter for considering the amendment application and only on that count, the application cannot be rejected. He submits that the Supreme Court in number of occasions has dealt with this issue and observed that if amendment sought for is necessary and within time, then to avoid multiplicity of litigation, it can be allowed.
19. I have heard the arguments advanced by learned counsel for the parties and perused the record.
20. After hearing the submissions made by learned counsel for the parties and perusal of record, the question emerges to be decided is as to whether the order passed by the Court below, rejecting the application on the ground of filing the same belatedly and whether the amendment sought to be incorporated in the plaint is necessary or relevant for deciding the issue involved in the suit ?
21. On perusal of the plaint which is available on record as Annexure P/1, it is seen that in the whole plaint there is no reference of hiba dated 01.12.1998. It is not disputed 18 WP No.5365 of 2017 from the pleadings made in the plaint that the suit property of respective civil suit is described in paragraph 2 of the plaint although there is some description in regard to the properties but in paragraph 3 of the plaint even it is made clear that the suit property is described in paragraph 2 of the plaint. In paragraph 4 of the plaint, the source of right of title acquired by the plaintiff has been described and thereafter in paragraphs 7,8 and 9, it is further demonstrated as to how property came to the father of the plaintiff. It is also not in dispute that the plaintiff filed a suit, i.e. i.e. Misc. Appeal No.19-A/2012 claiming right over the property by virtue of hibanama dated 01.12.1998 but that suit has been dismissed, though the trial Court rejected the application for amendment on the ground of delay but failed to prove that the plaintiff even after due diligence could not bring the said amendment.
22. Under the circumstances existing in the case and on the basis of the law laid down by the High Court in case of Avinash Kumar Rai (supra) on which counsel for the respondents has placed reliance dealing with the scope of supervisory jurisdiction of the High Court under Article 227 of the Constitution of India, relying upon several Supreme Court decisions, I am also of the opinion that in the present case, the amendment which is being sought to be brought not only hit by the proviso appended with the provisions of Order 6 Rule 17 of CPC but also on the point that the same appears to be irrelevant and not required for proper adjudication of the case. When there is no foundation of such a hibanama of claiming declaration of title and in the whole plaint, there was no 19 WP No.5365 of 2017 reference of said hibanama but on the contrary, the right claimed over the property and the source thereof is something different. The said hibanama since produced in another suit by the plaintiff and said suit has already been dismissed, in my opinion, seeking amendment bringing pleading in relation to hibanama dated 01.12.1998 is not relevant and as such, amendment application, prima facie appears to be frivolous, therefore, I do not find any perversity in the order passed by the trial Court so as to exercise supervisory jurisdiction under Article 227 of the Constitution of India.
23. In view of the aforesaid, in my opinion, this petition is without any substance and is hereby dismissed.
(SANJAY DWIVEDI) JUDGE rao Digitally signed by SATYA SAI RAO Date: 2022.09.12 18:30:51 +05'30'