Madhya Pradesh High Court
Dinesh Garg vs Smt. Madhu Gupta on 18 September, 2019
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
MP No.4826/2019
(Dinesh Garg & Anr. vs. Smt. Madhu Gupta & Anr.)
Gwalior, Dated : 18.09.2019
Shri Kamal Kumar Jain, Counsel for the petitioners.
This petition under Article 227 of the Constitution of India has
been filed against the order dated 16.5.2019 and 14.8.2019 passed by
Third Civil Judge Class-II, Gwalior in Civil Suit No.517A/2016.
The necessary facts for disposal of the present petition in short
are that the respondent No.1 has filed a suit for declaration and
injunction and the application for amendment of plaint was filed which was allowed by the Trial Court and accordingly, the petitioners also filed an application for consequential amendment in the written statement.
It is submitted by the counsel for the petitioners that the arguments on the application for amendment filed by the petitioners were heard on 16.5.2019, however, the application was not allowed. Accordingly, the petitioners thereafter filed an application for deciding the application under Order 6 Rule 17 of CPC. By the impugned order, the said application has been rejected on payment of cost of Rs.300/-.
Challenging the orders passed by the Court below, it is submitted by the counsel for the petitioners that once the Trial Court has not decided the application filed by the petitioners under Order 6 2 THE HIGH COURT OF MADHYA PRADESH MP No.4826/2019 Rule 17 of CPC, then the Court should not have fixed the case for recording of evidence unless and until his application for consequential amendment is decided and the Trial Court committed a material illegality by rejecting the application filed by the petitioners by the impugned order dated 14.8.2019.
Heard the learned counsel for the petitioners.
From the order dated 16.5.2019 it appears that the Trial Court took up the application filed by the petitioners for consequential amendment in the written statement. There appears to be a typing mistake in the order dated 16.5.2019. The said order begins with the words "bl vkns'k }kjk oknh dh vksj ls izLrqr vkosnu varxZr vkns'k 6 fu;e 17 dk fujkdj.k fd;k tk jgk gS "
Thereafter, it was mentioned by the Trial Court as under:
"izfroknhx.k dk vkosnu bl izdkj gS -------------"
The substance of the application for amendment in the written statement filed by the petitioners/defendants was mentioned in the application and thereafter once again it appears that a typing mistake was committed by the Trial Court and it was observed that the application filed by the plaintiff under Order 6 Rule 17 of CPC is allowed and the plaintiff was directed to incorporate the amendment within a period of three days. It is fairly conceded by the counsel for 3 THE HIGH COURT OF MADHYA PRADESH MP No.4826/2019 the petitioners that by the order dated 16.5.2019, in fact the Trial Court had considered the application filed by the petitioners under Order 6 Rule 17 of CPC. However, he constantly submitted that since the direction was given to the plaintiff to incorporate the amendment, therefore, the petitioners were well within their right to gather an impression that the application filed by the petitioners under Order 6 Rule 17 of CPC has not been decided and, accordingly, he moved an application under Section 151 of CPC for deciding the application filed by the petitioners under Order 6 Rule 17 of CPC. However, the Trial Court has wrongly observed that the application of the petitioners was already decided by the Trial Court.
Heard the learned counsel for the petitioners.
From the order dated 16.5.2019 it is clear that a typing mistake has been committed by the Trial Court by observing that the application filed by the plaintiff under Order 6 Rule 17 of CPC was allowed as well as by giving liberty to the plaintiff to amend the pleadings. It is well established principle of law that where an error is apparent on the face of record, then the Court can review its own order. It is fairly conceded by the counsel for the petitioners that in the order dated 16.5.2019 the substance of the amendment proposed in the written statement have been considered by the Trial Court. Thus the petitioners were well aware of the fact that their application 4 THE HIGH COURT OF MADHYA PRADESH MP No.4826/2019 under Order 6 Rule 17 of CPC has been allowed but by typing mistake it has been observed that the application filed by the plaintiff is allowed and the plaintiff was directed to amend the pleadings. It was expected of the petitioners that instead of making a mountain out of the mole, he should have filed an application for review of order dated 16.5.2019 for seeking clarification with regard to the incorporation of amendment in the pleadings. Instead of doing so, it appears that the petitioners decided to allege against the Court that their application under Order 6 Rule 17 of CPC has not been decided. Instead of loggerheading with the Trail Court, the petitioners should have sought permission from the Trial Court to incorporate the amendment in the written statement. Although it is expected that the counsel for the petitioners must be aware of the provisions of review, however, it is clear that deliberately an incorrect application was filed by the petitioners by alleging that his application under Order 6 Rule 17 of CPC has not been decided by the Trial Court.
Under these circumstances, this Court is of the considered opinion that the Trial Court did not commit any mistake in rejecting the application filed by the petitioners. Since the period for incorporating the amendment in the written statement has also expired and as the petitioners had also not prayed for extension of time, therefore, the Trial Court did not commit any mistake in closing 5 THE HIGH COURT OF MADHYA PRADESH MP No.4826/2019 the right of the petitioners to incorporate the amendment.
At this stage, it is submitted by the counsel for the petitioners that the Trial Court should have considered the application sympathetically by adopting a lenient view and should have permitted the petitioners to incorporate the amendment in the written statement.
So far as the submission made by the counsel for the petitioners is concerned, it is always expected from a lawyer that he would not blindly act as a mouthpiece of his client but he must assist the Court in a legal manner. Instead of resolving the dispute by pointing out the typing mistake committed by the Trial Court, the counsel for the petitioners decided to take up confrontation with the Trial Court unnecessarily. Justice can be dispensed only with the active assistance of the lawyers and if the lawyers instead of assisting the Court decides to have a head on collision for no reason and while doing so, if they do not make a prayer for extension of time for incorporating the amendment in the written statement, this Court is of the considered opinion that the Trial Court was helpless to extend the time without any verbal or written prayer.
Under these circumstances, this Court is of the considered opinion that no jurisdictional error was committed by the Trial Court 6 THE HIGH COURT OF MADHYA PRADESH MP No.4826/2019 by passing the order dated 14.8.2019. Accordingly, the said order is hereby affirmed.
The petition filed by the petitioners is hereby dismissed.
(G.S. Ahluwalia)
*Arun Judge
ARUN KUMAR MISHRA
2019.09.21 10:05:54 +05'30'