Madhya Pradesh High Court
Govind Sharan Yadav vs Smt Kapoori Devi on 13 February, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 13 th OF FEBRUARY, 2024
MISC. PETITION No. 4086 of 2022
BETWEEN:-
GOVIND SHARAN YADAV S/O SHRI NARAYANDAS
YADAV, AGED ABOUT 53 YEARS, OCCUPATION:
GOVERNMENT TEACHER, RESIDENT OF VILLAGE
RAMSAGAR (KHODAN) PRESENTLY IN DATIA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI HARSHVARDHAN SHARMA - ADVOCATE)
AND
SMT. KAPOORI DEVI W/O SHRI RAMJISHARAN YADAV,
AGED ABOUT 54 YEARS, OCCUPATION: HOUSEWIFE,
RESIDENT OF VILLAGE DONGAPUR, TEHSIL AND
DISTRICT DATIA (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI PRATIP VISORIYA - ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition, under Article 227 of the Constitution of India, has been filed by the petitioner being aggrieved by the order dated 04.08.2022 passed by the Fourth Civil Judge, Class-II, Tehsil and District Datia (M.P.) in Case No.66 of 2019 (RCSA); whereby, an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 preferred by the petitioner/plaintiff for making certain amendments in the plaint was rejected.
2. The facts of the case in nutshell are that the petitioner/plaintiff and Signature Not Verified Signed by: PAWAN KUMAR Signing time: 17-02-2024 11:07:37 AM 2 respondent/defendant are the relatives and the respondent by taking the petitioner in confidence had sold the land bearing Survey No.296/1, ad- measuring 0.67 hectares vide sale-deed dated 28.01.2017 but cheated by specifying wrong details of the property in the sale-deed, as in reality the respondent was the owner of the land bearing Survey No.269/1 instead of Survey No.296/1; therefore, a Civil Suit came to be filed by the present petitioner/plaintiff for declaration of title on actual land i.e. Survey No.269/1 and for amendment of the description of property in the said sale-deed.
3. A written statement has been filed by the present respondent/defendant and thereafter, issues were framed and the matter was put to trial and the witnesses of the plaintiff are in the midst of examination.
4. After completion of the statement of the plaintiff himself, a fact was unearthed by him that due to an inadvertent mistake which may have occurred due to typographical error in the plaint it was mentioned that the suit property was situated at Village Dongarpur, whereas the suit property was situated at Village Pahadi. The aforesaid mistake was bonafidely committed while drafting of the plaint, as the petitioner was the resident of Village Dongarpur and the land in question was adjacent to the said Village, but the petitioner in his suit mentioned as Village Dongarpur instead of Village Pahadi and this error could not be rectified at the time of filing of the plaint but as and when, the petitioner/defendant discovered the aforesaid mistake, he preferred an application under Order 6 Rule 17 of CPC for amending his plaint for rectifying the aforesaid mistake, as it was necessary for adjudication of the real controversy between the parties.
5. The learned Trial Court vide impugned order dated 04.08.2022 had dismissed the said application denying the said amendment which has been Signature Not Verified Signed by: PAWAN KUMAR Signing time: 17-02-2024 11:07:37 AM 3 challenged in the present petition.
6. Learned counsel for the petitioner has vehemently argued that the impugned order passed by the Trial Court is against the settled proposition of law that amendment of the pleadings should be allowed which is necessary for determination of the real controversy in the suit and as the very identity of the suit property was mistakenly averred in the plaint for avoiding multiplicity of litigation, it was necessary to carry out the said amendment but this aspect was not considered by the learned Trial Court.
7. While placing reliance on the judgements passed by the Hon'ble Supreme Court in the matters of Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon reported in 1969(1) SCC 869 and Mahila Ramkali Devi & Others vs. Nandram (Dead) through LRs & Others reported in (2015) 13 SCC 132, it was contended that a party cannot be refused to carry out the amendment merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure and the Court should always give leave to amend the pleading of a party, unless it is satisfied that the party applying was acting malafide, or that by his blunder, he has caused injury to his opponent which may not be compensated for by an order of costs and however negligent or careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side and as the present respondent/defendant could not show that any prejudice or injury caused to them, the learned Trial Court was bound to allow the said application.
8. On the basis of the above arguments, it was prayed that the present petition be allowed and the impugned order dated 28.01.2017 rejecting the Signature Not Verified Signed by: PAWAN KUMAR Signing time: 17-02-2024 11:07:37 AM 4 application for amendment be set aside and suitable directions be issued to the Trial Court to allow the petitioner/plaintiff to carry out the amendment which is necessary for adjudication of the real controversy between the parties.
9. On the other hand, learned counsel for the respondent/defendant while placing reliance on the judgement passed by the Hon'ble Supreme Court in the matter of J. Samuel & Others vs. Gattu Mahesh & Others reported in (2012) 2 SCC 300, had submitted that the application preferred by the petitioner/plaintiff was on account of typographical error committed at the time of drafting of the plaint as well as due to bonafide mistake committed by him while providing the details of the suit property, which in the light of the judgment cited above, cannot be accepted and had rightly been not accepted by the learned Trial Court, as there is a clear lack of 'due diligence' as provided under the Proviso to Order 6 Rule 17 of CPC and the mistake committed certainly doesn't come within the purview of a typographical error.
10. While referring to paras 21 and 22 of the aforesaid judgement, it was submitted that the term 'typographical error' is defined as a mistake made in the printed/typed material during a printing/typing process and the term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance, therefore, the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence, the plea of typographical error cannot be entertained in this regard since the situation is of lack of 'due diligence' wherein such amendment is impliedly barred under the Code.
11. Further, while placing reliance on para 3 of the written statement, it was brought to the knowledge of this Court that the factum of mistake committed by the petitioner/plaintiff was already pointed out by the respondent/defendant but Signature Not Verified Signed by: PAWAN KUMAR Signing time: 17-02-2024 11:07:37 AM 5 even after that, the petitioner/plaintiff let the trial proceed and only when it was thought that now, it would be difficult to succeed in the plaint that the present application has been moved, which was rightly rejected by the learned Trial Court, as it is a settled principle of law that after commencement of the trial, any amendment in the pleadings can be carried out only with the leave of the Court when the Court is satisfied with regard to the aspect of 'due diligence' of the party for not mentioning the said facts at prior point of time but as the said is not the situation herein, the present petition doesn't deserves to be allowed and accordingly, it should be dismissed.
12. Heard counsel for the parties and perused the record.
13. For adjudicating the present controversy, it is necessary to analyze the provisions of Order 6 Rule 17 CPC, which are quoted herein-below:
"17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
14. Proviso to Order 6 Rule 17 CPC which was inserted w.e.f. 2002 specifically lays down that n o application for amendment shall be allowed after the trial has commenced, unless the Court comes to a conclusion that in spite of ' d u e diligence', the party could not have raised the matter before the commencement of trial.
15. The Proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if the application is filed after commencement of trial, it has to be shown that in spite of 'due diligence', such amendment could not Signature Not Verified Signed by: PAWAN KUMAR Signing time: 17-02-2024 11:07:37 AM 6 have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial.
16. This aspect has been dealt with by the Honb'le Supreme Court in the matter of Salem Advocate Bar Association, Tamilnadu vs Union of India reported in AIR 2005 SC 3353.
17. In light of the aforesaid enunciation, if the present controversy is appreciated, the application for amendment doesn't reflect that even after 'due diligence', the petitioner/plaintiff could not have raised this aspect prior to commencement of trial. Admittedly, in the written statement the aforesaid fact was already brought to the knowledge of the petitioner/plaintiff by the respondent/defendant but even thereafter, the petitioner/plaintiff didn't cared to carry out the said amendment. Further from bare perusal of the application for amendment, two contrary pleas have been taken by the petitioner/plaintiff; one is that of due to some illusion, this fact could not be mentioned in the plaint and contrary to this, the said mistake was committed due to typographical error. The aforesaid aspect has been depreciated by the Hon'ble Supreme Court in the matter of J. Samuel & Others vs. Gattu Mahesh (supra) as cited by counsel for the respondent/defendant. For reference, paras 21 and 22 are quoted hereinbelow:
"21. In the given facts, there is a clear lack of `due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.
22. The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the Signature Not Verified Signed by: PAWAN KUMAR Signing time: 17-02-2024 11:07:37 AM 7 plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the plaintiffs. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip."
18. Since the very act of the petitioner doesn't amount to 'due diligence', therefore, the learned Trial Court has rightly rejected the said application which doesn't need any interference.
19. The judgments cited by the petitioner/plaintiff being based on some different facts are not applicable to the facts of the present matter.
20. Accordingly, the present petition being sans merits is hereby dismissed.
(MILIND RAMESH PHADKE) JUDGE pwn* Signature Not Verified Signed by: PAWAN KUMAR Signing time: 17-02-2024 11:07:37 AM