Madhya Pradesh High Court
Radheshyam Sahu vs Basantlal Sahu on 22 August, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 22nd OF AUGUST, 2023
MISC. PETITION No. 783 of 2020
BETWEEN:-
RADHESHYAM SAHU S/O LATE GHURFEKAN
SAHU, AGED ABOUT 55 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE
GANIYARI,TEHSIL AND DISTT. SINGROULI (M.P.)
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI A.S.HUSSAIN - ADVOCATE)
AND
1. BASANTLAL SAHU S/O BHAGELU, AGED
ABOUT 65 YEARS, R/O VIL. GANIYARI,TAH.
AND DIST. SINGROULI (M.P.) (MADHYA
PRADESH)
2. RAMLAKHAN SAHU S/O BHAGELU SAHU,
AGED ABOUT 60 YEARS, VILLAGE
GANIYARI TEH. AND (MADHYA PRADESH)
3. MST. TIJIYA D/O BHAGELU SAHU, AGED
ABOUT 55 YEARS, VILLAGE SINGOULIYA
DISTT. (MADHYA PRADESH)
4A. MST. DADNI W/O LATE CHHEDILAL,
AGED ABOUT 75 YEARS, VILLAGE
GANIYARI TEH. AND DISTT. (MADHYA
PRADESH)
4B. KAMLA S/O LATE CHHEDILAL, AGED
ABOUT 58 YEARS, VILLAGE GANIYARI
TEH. AND DISTT. (MADHYA PRADESH)
4C. PRAYAG LAL S/O LATE CHHEDILAL,
2
AGED ABOUT 42 YEARS, VILLAGE
GANIYARI TEH. AND DISTT. (MADHYA
PRADESH)
4D. HIRALAL S/O LATE CHHEDILAL, AGED
ABOUT 40 YEARS, VILLAGE GANIYARI
TEH. AND DISTT. (MADHYA PRADESH)
4E. SMT. DILRAJ DEVI D/O LATE
CHHEDILAL, AGED ABOUT 55 YEARS,
CHAGOURA POST TEH. MADA (MADHYA
PRADESH)
4F. SMT. CHHOTIYA D/O LATE CHHEDILAL,
AGED ABOUT 45 YEARS, VILLAGE
MAJHOULI POST TIMRA (MADHYA
PRADESH)
4G. SMT. SHANTI DEVI D/O LATE
CHHEDILAL, AGED ABOUT 35 YEARS,
VILLGE SINGROULIYA POST JARHA TEH.
(MADHYA PRADESH)
5A. MST. KAMLA DEVI W/O LATE CHHOTU
SAHU, AGED ABOUT 50 YEARS, VILLAGE
GANIYARI POST WAIDHAN TEH.
(MADHYA PRADESH)
5B. SMT. GUDIYA DEVI D/O LATE CHHOTU
SAHU, AGED ABOUT 40 YEARS, DHOSA
POST BHAIYATHAN (CHHATTISGARH)
5C. SMT. SARASWATI DEVI D/O LATE
CHHOTU SAHU, AGED ABOUT 30 YEARS,
VILLAGE SITUL POST JARHA TEH.
(MADHYA PRADESH)
5D. DEEPA SHAH D/O CHHOTU SAHU, AGED
ABOUT 20 YEARS, VILLAGE GANIYARI
POST WAIDHAN TEHSIL AND DISTT.
SINGRAULI (MADHYA PRADESH)
6. LALLU PRASAD SAHU S/O LATE
RAMADHAR SAHU, AGED ABOUT 26
YEARS, VILLAGE GANIYARI POST
WAIDHAN TEHSIL AND DISTT. SINGRAULI
(MADHYA PRADESH)
3
7. BITINI D/O LATE GHURFEKAN SAHU,
AGED ABOUT 58 YEARS, BHUIMAD TEH.
KUSMI (MADHYA PRADESH)
8. KAMLA PRASAD S/O CHHEDILAL SAHU,
AGED ABOUT 45 YEARS, VILLAGE
GANIYARI POST WAIDHAN TEHSIL AND
DISTT. SINGRAULI (MADHYA PRADESH)
9. PRAYAGLAL S/O CHHEDILAL SAHU, AGED
ABOUT 45 YEARS, VILLAGE GANIYARI
POST WAIDHAN TEHSIL AND DISTT.
SINGRAULI (MADHYA PRADESH)
10. HIRALAL S/O CHHEDILAL SAHU, AGED
ABOUT 40 YEARS, VILLAGE GANIYARI
POST WAIDHAN TEHSIL AND DISTT.
SINGRAULI (MADHYA PRADESH)
11. GOPAL DAS SAHU S/O CHHEDILAL SAHU,
AGED ABOUT 48 YEARS, VILLAGE
GANIYARI POST WAIDHAN TEHSIL AND
DISTT. SINGRAULI (MADHYA PRADESH)
12. SONELAL SAHU S/O CHHEDILAL SAHU,
AGED ABOUT 45 YEARS, VILLAGE
GANIYARI POST WAIDHAN TEHSIL AND
DISTT. SINGRAULI (MADHYA PRADESH)
13. GANESH PRASAD SAHU S/O CHHEDILAL
SAHU, AGED ABOUT 22 YEARS, VILLAGE
GANIYARI POST WAIDHAN TEHSIL AND
DISTT. SINGRAULI (MADHYA PRADESH)
14. SMT. CHANDRAVATI W/O
RAMSHIROMANI GUPTA, AGED ABOUT 53
YEARS, VILLAGE BILONJI TEH. AND
DISTT. (MADHYA PRADESH)
15. STATE OF M.P. THROUGH COLLECTOR
DISTT. SINGRAULI (MADHYA PRADESH)
16. SMT. NAVRAJ MATI W/O SHRI
RAMKRISHNA SHAH, AGED ABOUT 50
YEARS, VILAGE GANIYARI AND
KHAMHARIYA P.S WAIDHAN TEH. AND
DISTT. (MADHYA PRADESH)
4
.....RESPONDENTS
(RESPONDENTS BY SHRI VIVEK BADERIYA - ADVOCATE)
(RESPONDENT NO.14 BY SHRI R.S.PARIHAR - ADVOCATE)
This petition coming on for admission this day, the court passed
the following:
ORDER
1. This petition under Article 227 of the Constitution of India has been filed against the order dated 20.1.2020 passed by II Civil Judge Class II, Waidhen, District Singrouli in C.S.No.69-A/2012 by which an application filed by the petitioner under Order VI Rule 17 CPC has been partially allowed.
2. It is submitted by counsel for the petitioner that the plaintiff has filed a civil suit which was initially registered as C.S.No.3-A/201014/7/2010. The same was renumbered as C.S.No.69-A/2012 and is pending in the court of II Civil Judge, Class II, Singrouli. The suit was filed against the respondents/defendants no.1 to 14 for declaration of title over the land in dispute. Because certain clerical errors in the plaint, an application under Order VI Rule 17 CPC was filed along with a prayer to incorporate new paras as 16A, 16B and 24A in the plaint. By impugned order dated 20.1.2020 the trial court has partially allowed the application filed under Order VI Rule 17 CPC but has rejected the application pertaining to proposed amendment as mentioned in paras 16A, 16B and 24A.
3. By referring to the application filed under Order VI Rule 17 CPC it is submitted that in para 16A of the proposed amendment it was mentioned that the sale-deed dated 25.2.2012 executed in favour of the 5 defendant no.16 Smt.Navrajmati was executed during the pendency of this suit, therefore, the said transaction is governed by the principle of lis pendence. In para 24A it was proposed that the sale-deed dated 25.2.2012 executed in favour of defendant no.16 Smt.Navrajmati be declared as barred by the doctrine of lis pendence and it be also declared that it is null and void to the extent of rights of the petitioner/plaintiff. It is submitted that undisputedly the sale-deed dated 25.2.2012 was executed during the pendency of the suit, therefore, doctrine of lis pendence would certainly apply. It is submitted that whether such a pleading is taken or not, the sale-deed dated 25.2.20212 would be hit by the doctrine of lis pendence. However, in order to avoid multiplicity if the petitioner has sought permission to incorporate the amendment then the same should not have been dismissed only on the ground that it has been filed belatedly. It is submitted that delay in filing the application should not be the sole criteria for ascertaining as to whether the amendment in the plaint should be allowed or not.
4. Per contra, counsel for the respondents has supported the order passed by the trial court.
5. Heard the learned counsel for the parties.
6. The Supreme Court in the case of Life Insurance Corporation of India. Vs. Sanjeev Builders Pvt. Limited decided on 1.9.2022 in Civil appeal No.5909/2022 has held as under :-
70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application 6 thereof are satisfied and the field of amendment of pleadings falls far beyond its purview.
The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall" in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed.
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or 7
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin- pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the 8 opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897).
7. Thus, it is clear that if amendment is necessary for adjudication of the suit then the same should be allowed irrespective of the fact that such an application was filed belatedly or not. In case if the trial court comes to a conclusion that the application was filed belatedly then the defendant can be compensated by award of cost. If the amendment proposed by the petitioner is considered then his only contention is that the sale-deed dated 25.5.2012 is barred by doctrine of lis pendence as it was executed during the pendency of the suit.
8. Whether such an amendment is incorporated or not, the sale-deed dated 25.2.2021 shall always be hit by the doctrine of lis pendence and, therefore, a specific declaration to that effect would not change the nature of suit. However, in order to avoid multiplicity and in order to protect the right of the defendant no.16 if the petitioner decided to move such an amendment then the same should have been allowed and the same should not have been rejected by adopting too technical approach. Accordingly, the order 20.1.2020 passed by II Civil Judge Class II, Waidhen, District Singrouli in C.S.No.69-A/2012 is hereby set aside. The amendment proposed in para 6A, 6B and 24A of the plaint is hereby allowed.
99. Let necessary amendment be carried out within a period so fixed by the trial court. The respondents/defendants, if so advised, may file their consequential amendment.
10. Since the suit was instituted in the year 2010 and is pending since last 13 long years, and there was also a stay of further proceedings of the suit by interim order dated 20.1.2021, therefore, the trial court is directed to decide the suit positively within a period of six months from today.
11. If required, the trial court may proceed on day to day basis but shall ensure that no adjournment beyond the period of four days is granted. If any interlocutory application is filed then either the same should be decided on the very same day or if any reply is required, then the opposite party may file their reply latest by the next day and the said application must be decided within two days thereafter.
12. With aforesaid observation, the petition is finally disposed of.
(G.S. AHLUWALIA) JUDGE HEMANT SARAF 2023.08.22 18:47:34 +05'30' HS