Madhya Pradesh High Court
Smt. Suraiyaa Bi vs Ravish on 8 December, 2023
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 8 th OF DECEMBER, 2023
MISC. PETITION No. 6666 of 2023
BETWEEN:-
SMT. SURAIYAA BI W/O SHRI ISHTIYAR MOHAMMD,
AGED ABOUT 73 YEARS, OCCUPATION: HOUSEWIFE 3
SALVI BHAKAL, INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI CHETAN JAIN- ADVOCATE FOR THE PETITIONER) .
AND
1. RAVISH S/O RAMESHCHANDJI PACHORIYA,
AGED ABOUT 51 YEARS, OCCUPATION: BUSINESS
44 BAKSHIGALI (MADHYA PRADESH)
2. HARISH S/O RAMESHCHANDJI PACHORIYA,
AGED ABOUT 49 YEARS, OCCUPATION: BUSINESS
44, BAKSHIGALI INDORE (MADHYA PRADESH)
3. AMRISH S/O RAMESHCHAND JI PACHORIYA,
AGED ABOUT 46 YEARS, OCCUPATION: BUSINESS
44 BAKSHIGALI INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI PRATEEK MAHESHWARI- ADVOCATE FOR THE RESPONDENT
NO.1).
This petition coming on for admission this day, th e court passed the
following:
ORDER
This miscellaneous petition is filed under Article 227 of the Constitution of India which has been preferred challenging the order dated 18.10.2023 passed by the 3rd Civil Judge, Senior Division Indore in RCS-A 150/2014 whereby the application of petitioner/defendant for amendment in written Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 12/12/2023 1:45:52 PM 2 statement under Order 6 Rule 17 of CPC has been dismissed.
2. The facts as narrated and gathered from the documents submitted are that respondents filed a civil suit before the Civil Judge Class-I, Indore claiming the relief, eviction, damages and mesne profit and possession on 10.05.2013. At the stage of plaintiffs evidence, an application for amendment in written statement was submitted by defendant on 19.09.2023 and sought the proposed amendment to be included after paragraph 5 of additional written statement as para 6 to 21. Prayer was opposed by plaintiffs.
3. Trial Court dismissed the application by order dated 18.10.2023 on the ground that the essence of proposed amendment is already in the written statement already on record. The proposed amendment is sought after commencing the trial and condition of due diligence has not been fulfilled.
4. The petitioners has assailed the impugned order on the ground that the proposed amendment are necessary for deciding the real question in controversy between the parties and did not change the nature of the suit and is also necessary for just decision of the case. The trial Court has committed an error apparent on the face of record in misinterpretation of the averments stated in the application for amendment and by holding that the averments submitted in the amendment are already part of the written statement and the proposed amendment appears to be only clarification to the averments already stated in the written statement. Proposed amendment is necessary to decide the real controversy in the lis between the parties. Delay cannot be considered as a ground to dismiss the prayer for amendment. The trial Court has failed to consider the aspect that amendment will aid in rendering a more satisfactory decision & proposed amendment does not result in prejudice to the opposite party.
Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 12/12/2023 1:45:52 PM 3Heard both the parties at length.
5. Learned counsel for the petitioner relied on :-
1. State of Bihar v. Modern Tent, 2018 (1) MPLJ570;
2. Ajit Singh and Another v. Devesh Pratap Singh and Others, 2108(1) MPLJ 374;
3. Vallabh Electronics v. Branch Manager, 2020(1) MPLJ 100;
4. Ram Pal v. Babu Lal and Others, (2013)(2)MPLJ147.
6. On the contrary counsel for the respondent/plaintiffs opposed the petition on the strength of Vidyabai and Others v. Padmalatha and Another (2009) 2 SCC 409, South Konkan Distilleries v. Prabhakar Gajanan Naik and Others, (2008) 14 SCC 632 and J. Samuel and Others v. Gattu Mahesh and Others, (2012) 2 SCC 300.
7. Perused the para 17(1) to (5) of written statement filed on 10.05.2018. Para 17(1) mentions about registered sale-deed No.01//1268/1968 and the transaction dated 14.11.1970 and 06.11.1975 , para 17(1) and (2) para 17(3) relates to the civil suit No.753-A/94 instituted before the Court of 9th Civil Judge, Class-I, Indore and the details of the death of Fatima bee in para 17(3) and (4) and para 17(5) gives the details regarding civil suit No.18/78 instituted in the Court of 3rd Civil Judge, Class-I, Indore and the destruction of that record and order for re-construction of that record.
8. Petitioner/Defendant also raises the plea of adverse possession regarding House No.3 Salvi Bakhal, Indore in para 5 of the written statement filed on 10.05.2013.
9. Para 11 of the proposed amendment mentions regarding 'Will' executed by Fatima Bee in favor of defendants.
Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 12/12/2023 1:45:52 PM 410. The reasons assigned for proposed amendment at that stage are mentioned in para 01 of the application( Annexure P-3) as during the cross- examination of plaintiffs evidence certain new facts have been discovered and those discovered new facts have been mentioned in para 16 to 21 and at the end of the application, it is mentioned that proposed amendment is necessary for just decision of the case.
11. The affidavit of petitioner Surya Bee mentions that due to old age and ill health her memory has been affected.
12. Court is conscious to the fact that delay alone is not a ground to dismiss the prayer for amendment. Proposed amendment is being tested on other parameters and for this purpose it is profitable to mention the para 70 of "Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd. & Ors., (2018) 11 SCC 722"
"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 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 Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 12/12/2023 1:45:52 PM 5 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(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 opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 12/12/2023 1:45:52 PM 6 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."
13. The proposed amendment is by way of defence and is necessary for the court to effectively adjudicate on the main issues in controversy between the parties. It does not result in irreparable prejudice to the 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. Considering the parameters No.70
(ii), (viii) and (xi) of the Life Insurance Corporation of India (supra) the amendment should be allowed. The order of trial Court is not sustainable and is set-aside and the proposed amendment in written statement vide application dated 19.09.2023 is allowed at the cost of Rs.3,000/-(Three Thousand Only) to be paid to respondents. The trial Court shall provide opportunity for rebuttal.
With the aforesaid, this petition stands disposed of.
(GAJENDRA SINGH) JUDGE akanksha Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 12/12/2023 1:45:52 PM