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Madhya Pradesh High Court

Kaushal Prasad Mishra vs Kamal Prasad Mishra on 21 June, 2023

Author: Sanjay Dwivedi

Bench: Sanjay Dwivedi

                                                       1
                           IN    THE     HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                   BEFORE
                                     HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                              ON THE 21 st OF JUNE, 2023
                                           MISC. PETITION No. 1527 of 2022

                          BETWEEN:-
                          KAUSHAL PRASAD MISHRA S/O LATE UTTAM MISHRA,
                          AGED ABOUT 52 YEARS, OCCUPATION: SERVICE R/O
                          SUBEDAR WARD SAGAR, TAHSIL AND DISTT. SAGAR
                          (M.P.) (MADHYA PRADESH)

                                                                              .....PETITIONER
                          (BY SHRI DHARMENDRA SONI- ADVOCATE)

                          AND
                          1.    KAMAL PRASAD MISHRA S/O LATE UTTAM K
                                MISHRA, AGED ABOUT 47 YEARS, OCCUPATION:
                                AGRICULTURIST R/O VILLAGE HATHNA, TAHSIL
                                AND DISTT. DAMOH (M.P.) (MADHYA PRADESH)

                          2.    MAHENDRA MISHRA S/O LATE UTTAM MISHRA,
                                AGED    ABOUT     42     YEARS, OCCUPATION:
                                AGRICULTURIST R/O VILLAGE HATHNA, TAHSIL
                                AND DISTT. DAMOH (M.P.) (MADHYA PRADESH)

                          3.    DASHRATH MISHRA S/O LATE UTTAM MISHRA,
                                AGED    ABOUT     33     YEARS, OCCUPATION:
                                AGRICULTURIST R/O VILLAGE HATHNA, TAHSIL
                                AND DISTT. DAMOH (M.P.) (MADHYA PRADESH)

                          4.    STATE OF MADHYA PRADESH THROUGH
                                COLLECTOR   DAMOH DISTT. DAMOH (M.P.)
                                (MADHYA PRADESH)

                          5.    STATE OF MADHYA PRADESH THROUGH SUB
                                DIVISIONAL OFFICER DAMOH DISTT. DAMOH
                                (M.P.) (MADHYA PRADESH)

                          6.    STATE OF MADHYA PRADESH THROUGH
                                TAHSILD AR TAHSIL DAMOH, DISTT. DAMOH
                                (M.P.) (MADHYA PRADESH)


Signature Not Verified
                          7.    SMT. SUHAGRANI MISHRA W/O LATE UTTAM
Signed by: RAVIKANT
KEWAT
Signing time: 6/22/2023
11:08:24 AM
                                                          2
                                MISHRA, AGED ABOUT 75 YEARS, OCCUPATION:
                                UNEMPLOYED R/O VILLAGE HATHNA, TAHSIL
                                AND DISTT. DAMOH (M.P.) (MADHYA PRADESH)

                          8.    SMT. GEETA MISHRA W/O PRABHUDAYAL
                                CHOUBEY, AGED ABOUT 44 YEARS, OCCUPATION:
                                HOUSEWIFE R/O MUKESH COLONY, DAMOH,
                                TAHSIL AND DISTT. DAMOH (M.P.) (MADHYA
                                PRADESH)

                                                                                       .....RESPONDENTS
                          (BY SHRI AKHILESH KUMAR JAIN- ADVOCATE)

                                This petition coming on for admission this day, th e court passed the
                          following:
                                                              ORDER

With consent of parties the matter is heard finally.

This petition under Article 227 of the Constitution of India assailing the validity of the orders dated 10.02.2020 and 18.02.2020 (Annexure-P/1) passed by the trial Court whereby in a pending suit application submitted by the plaintiffs/respondents under Order 6 Rule 17 of CPC has been allowed.

Counsel for the petitioner submits that application was properly replied and opposed by the defendants mainly on the ground that the amendment changes the nature of the suit but the trial court without considering the same allowed the application. Counsel for the petitioner submits that initially the property which was said to be a suit property considered to be an ancestral property and as such in paragraph-1 of the plaint it is shown to be "Patrak Sampati" but by way of amendment the word "Patrak" sought to be deleted and he further submits that the ancestral property though in a plaint had been converted by way of amendment as the self acquired property of the father. He submits that as such the very foundation of the claim was declaration got changed and that is not permissible under the law.

Shri A.K.Jain, advocate for the respondents on the other hand opposed the submission made by the counsel for the petitioner and submits that if the plaint and the application for amendment is carefully examined, it can be easily gathered that there was no change in the version of the plaintiff and nature of suit does not change. He further submits that whatever description made in the plaint has been described elaborately in the application for amendment filed under Order 6 Rule 17 of CPC.

I have perused the plaint and also the application under Order 6 Rule 17 of CPC filed by the plaintiff. Although in paragraph-1 of the plaint it is shown that the suit property to be an ancestral property (Patrak Sampati). Although from paragraph-2 onwards it is described and from the pleadings made in the plaint it is clear that the word "Patrak" has wrongly been used because description made in the pleadings contained in the plaint from paragraph-2 onwards it is clear that the property was the self acquired property of the father of the plaintiff and the respondent no.1 and, therefore, plaintiff is claiming share accordingly saying that respondent no.1/defendant has already been granted his share by making payment of Rs.1,20,000/- (Rupees One Lakh and Twenty Thousand Only) by the father and application for amendment also examined in which it is made clear that the property is a self acquired property of the father of the parties and, therefore, they sought that the word "Patrak" has wrongly been used and that be deleted.

Contention of the parties and perusal of the reliefs claimed in the plaint it is clear that the suit was for declaration on the basis of nature of property purchased by father of the plaintiffs and that was continued even after allowing the amendment and as such nature of suit does not change. However, counsel Signature Not Verified for the defendant/petitioner herein has every right to make consequential Signed by: RAVIKANT KEWAT Signing time: 6/22/2023 11:08:24 AM 4 amendment and claim his share over property in view of the pleadings existing in the suit.

With the aforesaid observations and giving liberty to the petitioner for making consequential amendment in the written statement and also in the counter-claim if any filed by the defendant. petition is disposed without interfering in the order passed by the trial Court.

(SANJAY DWIVEDI) JUDGE rk.