Madhya Pradesh High Court
Ajit Singh vs Devesh Pratap Singh on 11 August, 2017
1 W.P. No. 8315/2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
WRIT PETITION NO. 8315/2017
Ajit Singh & Another
Vs.
Devesh Pratap Singh & Others
Shri Himanshu Mishra and Shri Ankit Saxena,
learned counsel for the petitioners.
Shri Rajendra Kumar Singh, learned counsel for
respondents No. 1 to 3 on caveat.
ORDER
(11.08.2017) The petitioners have filed the present petition, under Article 227 of the Constitution of India, challenging the order dated 19.05.2017 passed by 4 th Civil Judge Class-I, Rewa in Civil Suit No 23A/2016 thereby rejecting the application submitted by the petitioners for amendment in the written statement.
2 W.P. No. 8315/2017
2. Brief facts of the case are that the respondent/original plaintiff has filed a civil suit for partition of the land in question, possession and also to declare the sale deed as null and void. The defendants/petitioners had filed written statement and denied the averments made in the plaint. During the pendency of the said civil suit, the petitioners filed an application under Order 6 Rule 17 of the C.P.C. for amendment in the written statement. In the said application, the petitioners have submitted that the original plaintiff has filed a civil suit for declaration and partition and the written statement was filed to the effect that the property of Late Shri Arjun Singh situated at Khaduli, Mudariya, Beohari, District Shahdol is around 80 acres of land and the land bearing Khasra No. 3776 was also self acquired property of Late Shri Arjun Singh which has not been inserted in the plaint and the aforesaid land has been duly partitioned in the year 1956. The petitioners have further submitted that in the aforesaid land the original 3 W.P. No. 8315/2017 plaintiff has given Khasra No. 3776 by the father of the Arjun Singh and with the consent of the father the land was duly mutated in the name of the original plaintiff. However, due to inadvertent in the additional submission of the written statement these submissions could not have been made. He, therefore, filed an application for amendment in the written statement. However, looking to the facts mentioned in the application, the trial Court has dismissed the said application vide order dated 19.05.2017 on the ground that the proposed amendment will change the nature of the suit and further the amendment is contrary to the proviso to Order 6 Rule 17 of the C.P.C.
3. Learned counsel appearing on behalf of the petitioners argues that the order passed by the trial Court is illegal and arbitrary. He submits that the amendment under Order 6 Rule 17 of the C.P.C. has came into force in the year 2002 while the present suit is filed in the year 1981, therefore, as per amended Section 16 of the C.P.C., the proviso would not be applicable in the present case and for 4 W.P. No. 8315/2017 the said purpose he relied on the judgment passed by the Apex Court in the case of State Bank of Hyderabad Vs. Town Municipal Council, reported in (2007) 1 SCC 765. He further argues that the principles which are applicable to the amendment in the plaint are not applicable in the case of amendment in the written statement. He further submits that the trial Court should have adopted the liberal approach in allowing the amendment in the written statement and for the said purpose he also relied on the judgment passed by the Apex Court in the case of Sushil Kumar Jain Vs. Manoj Kumar and Another, reported in (2009) 14 SCC 38.
4. On the other hand, learned counsel appearing on behalf of the respondents supports the order passed by the trial Court. He submits that the trial Court has rightly rejected the application submitted by the petitioners for amendment. He further submits that the suit is pending since 1981 and the application has been filed with inordinate delay. He further submits that by the proposed 5 W.P. No. 8315/2017 amendment nature of the suit will be changed. He further argues that the petitioners have failed to show due diligence in filing this application at the belated stage after commencement of the trial. For the said purpose, he relied on the judgment passed by the Apex Court in the case of J. Samuel and Others Vs. Gattu Mahesh and Others, reported in (2012) 2 SCC 300.
5. I have heard learned counsel for the parties and perused the record as well as the order passed by the trial Court.
6. Order 6 Rule 17 of the C.P.C. reads as under:-
"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."
7. The Proviso appended thereto was added by the Code of Civil Procedure (Amendment) Act, 2002 which came into force with effect from 1.07.2002. It reads 6 W.P. No. 8315/2017 as under:
"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."
8. Section 16(2) of the amending Act of 2002 reads as under:
"16(2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897-
(a) *** ***
(b) the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;"
9. The Apex Court in the case of State Bank of Hyderabad (supra) has held that there cannot be any 7 W.P. No. 8315/2017 doubt whatsoever that the suit having been filed in the year 1998, proviso to Order 6 Rule 17 of the Code shall not apply. In the present case, the suit has been filed in the year 1981, therefore, as per this judgment proviso to Order 6 Rule 17 of the Code will not apply.
10. So far as, amendment in the written statement is concerned, the Apex Court in the case of Sushil Kumar Jain (supra) in paragraphs 13 and 14 has held as under:-
"13. At this stage, we may remind ourselves that law is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle.
"15......Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action"
(See Baldev Singh vs. Manohar Singh, SCC p. 504, para 15.) Similar view has also been expressed in Usha Balashaheb Swami v. Kiran Appaso Swami, AIR 2007 SC 1663.
14. It is equally well settled that (SCC p. 609, para 22) in the case of an amendment of a written 8 W.P. No. 8315/2017 statement, "the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed."
11. Thus, in light of the aforesaid judgment passed by the Apex Court, the trial Court has erred in rejecting the application submitted by the petitioner for amendment in the written statement.
12. Consequently, the writ petition is allowed. The impugned order dated 19.05.2017 passed by the trial Court is hereby set aside and the application submitted by the petitioner for amending the written statement is hereby allowed.
(Ms.Vandana Kasrekar) Judge ashish