Madhya Pradesh High Court
Shyamnath Sharma vs Kripal Singh Bedi on 30 January, 2017
WP-14828-2013
(SHYAMNATH SHARMA Vs KRIPAL SINGH BEDI)
30-01-2017
Shri R.K. Verma, learned senior counsel, assisted by Ms. Preeti Khanna,
for the petitioner.
Shri Ashish Shroti, learned counsel for the respondents No. 1 to 4.
This petition under Article 227 of the Constitution of India has been filed against the order dated 6.8.2013 passed by the XII Civil Judge, Class I, Bhopal in Civil Suit No.244-A/2008 filed by Kripal Singh against Shyamnath Sharma, Hare Krishna Colonizer Pvt. Ltd., New Krishi Nagar Grih Nirman Sahkari Samiti and Shambhunath Sharma, allowing the amendment application filed by the plaintiff.
2. It is to be noted here that the suit was filed with respect to the property of Khasra No. 103/11/4 and 111/11 area 0.25 acre out of the total area of one acre situated in village Chuna Bhatti, Patwari Halka No. 40, Tehsil Huzur, district Bhopal. It is not in dispute that the said property was purchased by Rajesh Wadhwani, Smt. Pushpa Tiwari and Sanjay Paliwal. On perusal of the pleadings of the entire plaint it indicates that relief was sought by Kripal Singh Bedi with respect to the property owned by him i.e. 0.25 acre which was sold to Rajesh Wadhwani, Smt. Pushpa Tiwari and Sanjay Paliwal. Therefore, the amendment, if any, in the suit of Kripal Singh can be made by the purchasers with respect to piece of land which is the subject matter of the suit. By filing amendment application, the subsequent purchasers, who have been joined as plaintiffs, banking upon the shoes of Kripal Singh with respect to a property purchased from different owner namely Sangeeta Puri injunction against the defendants has also been sought with respect to the said piece of the land which is not the subject matter of the suit. The trial court by the order impugned allowed the said amendment on the pretext that the earlier amendment was allowed in paragraph 4-A wherein reference of the property purchased on 7.2.2007 by the purchasers, however, the present amendment is to explain the earlier amendment. Therefore, the application filed by the purchasers has been allowed with respect to the property which was not the part of the suit property of Kripal Singh and stepping upon his shoes the purchasers have become the plaintiffs in the case.
3. Learned counsel for the petitioner has strenuously urged that the property in question in the suit to which cause of action was pleaded in the relief was sought was different than the property purchased by the purchasers from one Sangeeta Puri. However, merely mentioning the fact regarding purchase of the other piece of land which was not the part of the suit property would not lead to give a cause of action to make an amendment in the case otherwise it would change the subject matter of the case. In addition to the aforesaid, it is urged that once pleading regarding threat of possession against defendant to a property purchased from Sangeeta Puri has not been pleaded and the relief has not been sought in the original suit, such amendment cannot be allowed. It is said that hearing of the suit has already taken place in the year 2007 by settlement of the issues. Therefore, amendment in the year 2013 after six years without indicating any due diligence for the delay caused looking to the proviso to Order 6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as 'the Code') cannot be allowed. The trial court committed error much less of jurisdiction to entertain and allow the application. However, the order impugned may be set aside allowing this petition.
4. On the other hand, learned counsel for the respondents Shri Shroti representing the plaintiffs purchasers contends that the suit was filed with respect to a piece of land purchased by Kripal Singh i.e. 0.25 acre. who sold the same to the purchasers, who have been subsequently joined as party to the proceedings on 7.2.2007 due to the said piece of land. The purchasers have also purchased the property from one Sangeeta Puri adjacent to the said property i.e. of 0.25 acre in addition to the land of Kripal Singh on the same date and the reference thereof was made in the earlier amendment in paragraph 4-A of the suit. Therefore, to explain the pleadings of para 4-A of the suit if subsequent amendment has been allowed by the trial court it would not cause any prejudice to the petitioner. The purpose of proviso incorporated under Order 6 Rule 17 CPC to allow the amendment is to determine the real question of controversy between the parties. It would not prejudice the right of the defendants, therefore, amendment has rightly been allowed by the trial court. However, interference in this petition under Article 227 of the Constitution of India is not warranted.
5. After hearing learned counsel appearing on behalf of both the parties and perusal of the facts of this case, first of all relevant provisions of Order 6 Rule 17 of CPC regarding amendment of the pleadings is relevant, therefore, Rule 17 is reproduced as under:-
â17. Amendment of Pleadings.- the Court may at any stage at 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.â On perusal of the aforesaid, no doubt it is true that while inserting the amendment by Act No. 22/2002 the intention of the Legislature is, that the court conferred the power at any stage of the proceedings to allow either party to alter or amend his pleading in the manner and terms which may be just and such amendment be made if necessary for the purpose of determining the real question in controversy between the parties. By the amendment in the year 2002 though proviso has been added curtailing the discretion of the courts while considering the amendment in the pleadings of either party in case the trial has commence without showing due diligence by the parties, satisfying the conscious of the Court. Meaning thereby, the unfettered discretion of the court to allow the amendment at any stage in the pleading of the either party has been curtailed by the amended Act of 2002. In addition to the aforesaid, the amendment in the pleadings must be for the purpose of determining the real question in controversy between the parties.
6. In the present case, looking to the pleadings of the plaint of the present case, it reveals that Kripal Singh filed a suit with respect to a piece of land area 0.25 acre of Khasra No. 103/11/4, 111/11 pleading cause of action with respect to the said piece of land having threat of dispossession against the defendants asking relief to the extent of said piece of land. Rajesh Wadhwani, Smt. Pushpa Tiwari and Sanjay Paliwal are the purchasers of the land of Kripal Singh. However, the amendment in the plaint may be made by the purchasers stepping upon the shoes of the original plaintiff with respect to the piece of land which belonged to him and purchased by the purchasers. Indeed it is true that the subsequent purchasers filed an application seeking amendment in para 4-A of the suit which was allowed somewhere in the year 2007 by which a reference of purchase of the other property from one Sangeeta Puri by registered sale deed dated 7.2.2007, which was not the subject matter of the suit, has been mentioned, but it was not give rise a cause to the purchasers to bring the property purchased from Sangeeta Pkuri to be a part of the suit property purchased from Kripal Singh banking upon the shoes of Kripal Singh by the purchasers. No pleading is available on record that any threat has been received by the purchasers with respect to the property purchased from Sangeeta Puri. It is to be further noted here that the trial has commenced in the year 2007 while the application has been allowed by the order impugned dated 6.8.2013 i.e. after seven years. Looking to the pleadings of the application seeking amendment, it reveals that due diligence has not been clarified by the plaintiff except to say that due to inadvertence such amendment could not be brought earlier. Thus looking to the facts of the present case and the purpose to which proviso to Order 6 Rule 17 of the Code has been added. It is apparent that after the trial has commenced the application for amendment would not be allowed unless it is satisfied by the parties that despite due diligence the said amendment could not be brought.
7. In view of the discussion made hereinabove, it is apparent that explanation of due diligence as to why amendment could not be brought after amending the pleading in para 4-A of the suit about seven year back has not been pleaded and brought on record during course of hearing. In absence thereto, the amendment as allowed by the trial court is contrary to the spirit of the provisions of the amended Act No. 22/2002. In addition to the aforesaid, it is to be noted here that the amendment in the pleading can be brought by either party with an intent and for the purpose to determine the real question in controversy between the parties. As discussed above, the real question in controversy between the parties is with respect to the piece of land of 0.25 acres purchased from Kripal Singh by the purchasers. In this regard, it is relevant to mention that the suit has been filed by Kripal Singh having a threat by the defendants of dispossession against him only to the property in question is of 0.25 acre. However, a different property of 0.25 acre purchased from one Sangeeta Puri by the purchasers cannot be added in a suit filed by Kripal Singh, which was not originally the subject matter of the suit, by the amendment without having any specific plea as to how there was threat of dispossession with respect to the property owned by Sangeeta Puri purchased by the purchases. In absence thereto, without any cause and relief to that extent the property of Sangeeta Puri cannot be put into the question for determination in a suit filed by Kripal Singh purchased by the purchasers. In that view of the matter, in my considered opinion, the amendment does not fulfill the requirement of the substantive provision of Order 6 Rule 17 of the Code and also of the proviso added by Act No. 22/2002. In consequence to the discussion made hereinabove, it is apparent that the trial court exceeded its jurisdiction while allowing the application filed by the plaintiffs purchasers under Order 6 Rule 17 of the Code with respect to the property purchased by them from Sangeeta Puri by passing the order impugned. Therefore, the order impugned passed by the trial court is not in conformity with the provisions of Order 6 Rule 17 of the Code and proviso thereto, hence, the trial court committed error of jurisdiction to allow such application. Accordingly, this petition is hereby allowed. The order impugned dated 6.8.2013 passed by trial court stands set aside. The trial court is directed to decide the suit as early as possible, not later than one year.
(J.K. MAHESHWARI) JUDGE shukla