Madhya Pradesh High Court
Smt. Ramshree Kushwah vs Kalicharan on 8 December, 2016
1
W.P. No. 7317/2016
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB : HON'BLE MR. JUSTICE S.A. DHARMADHIKARI
W.P. No. 7317 of 2016
Smt. Ramshree Kushwah & Ors.
Vs.
Kalicharan and Ors.
Whether reportable :- Yes /No
__________________________________________________________
For Petitioners : Shri Sumant Mishra, Advocate.
For Respondents : Shri H.K. Shukla, Advocate
No. 1 to 6.
ORDER
(Delivered on this Day of 8th December, 2016) Heard finally with the consent of both the parties.
2. In this petition under Article 227 of Constitution of India, petitioners have challenged the legality, validity and proprietory of the order dated 01/09/2016 passed by the trial court dismissing the application of the petitioners / plaintiffs under Order VI Rule 17 of Code of Civil Procedure.
3. The petitioners / plaintiffs had filed a civil suit for declaration and permanent injunction in respect of land situated at survey No. 106 min 1, 106 min 2 on the ground that the respondents No. 1 to 6 have no relation with them and inspite of this fact, the land has been sold out by the 2 W.P. No. 7317/2016 respondent No. 1 to 5 vide sale deed dated 23/10/2010 and are trying to dispossess the petitioners/plaintiffs.
4. The defendant / respondents No. 1 to 6 jointly filed the written statement and denied the claim of the petitioners/ plaintiffs.
5. Petitioners/plaintiffs filed an application under Order VI Rule 17 of CPC for amendment inter alia contending that during cross examination of PW/1, the defendant's counsel asked the question to PW/1 that the name of legal representatives of Nandram were entered in survey Nos. 82, 89, 92, 104, 105, 106/1, 106/2, 107, 108 , 125 & 126 as owner as shown in Ex. D/1, therefore, the petitioners / plaintiffs came to know about the fact that the defendant Nos. 1 to 5 have got entered their names in the revenue record. It was further contended that the said amendment is based on the document filed by the defendants and on the basis of question asked at the time of cross examination which is a subsequent event and as such could not have incorporated the same before trial had commenced. It came to the knowledge only on 02/03/2016. It is further submitted that the theory of commencement of trial will not be applicable in the present case at the time of cross examination of the plaintiffs. Learned trial court has committed error in dismissing the said application, therefore, the impugned order is liable to be set aside. 3 W.P. No. 7317/2016
6. On the other hand, learned counsel for the respondents/defendants has opposed the application on the ground that the petitioners had knowledge of the said fact earlier, therefore, they did not file the entries of the disputed survey numbers. Name of Sushila and others are already on record since 1987. The trial has commenced and the cross examination has taken place, therefore, allowing the application for amendment at this stage would amount to violation of the settled principle of law, therefore, such amendment application cannot be allowed.
7. The trial court vide impugned order has dismissed the application on the ground that the amendment is not based on the subsequent event.
8. The learned counsel for the petitioners has placed reliance on the judgment of the Supreme Court in the case of Rajesh Kumar Aggarwal vs. K.K. Modi reported in 2006 (3) MPLJ 215 to contend that the object of Order VI Rule 17 of CPC is that the Court should try to the merit of the case that come before it and should consequentially allow all the amendment applications that may be necessary to determine the controversy involved between the parties provided it does not cause injustice or prejudice to the other side. The petitioners further placed reliance on the decision of the Supreme Court in the case of Chander Kanta Bansal vs. 4 W.P. No. 7317/2016 Rajinder Singh Anand reported in 2008 (4) MPLJ 269, Ramesh Kumar Agarwal vs. Rajmala Exports Pvt. Limited and Ors. reported in (2012) 5 SCC 337, Mohanlal and Ors. vs. Shravan Kumar and Ors. reported in 2016 (3) MPLJ 507 & Bholanath vs. Kamlesh Gupta & Ors. reported in 2015 (4) MPLJ 328 in support of his contentions.
9. I have considered the submissions made by learned counsel for the parties and perused the record.
10. It is well settled in law that just and proper amendment can be introduced at any stage. At the best the trial court can impose cost if the proposed amendment is necessary for just and fair adjudication of the controversy involved in the suit. The application sought to be brought on record came to the knowledge of the plaintiffs only at the time of cross examination of PW/1.
11. Accordingly, the impugned order dated 01/09/2016 (Annexure P/1) is hereby set aside. The application under Order VI Rule 17 of CPC is hereby allowed. Plaintiffs are directed to carry out amendment in the plaint.
12. Resultantly, the instant writ petition stands allowed. No order as to costs.
(S.A. Dharmadhikari) JUDGE (08/12/2016) Durgekar*