Madhya Pradesh High Court
Kamla Nehru Grihanirman Sahakari ... vs Shitleshwar Grihanirman Sahakari ... on 2 May, 2017
WP-1772-2015 (KAMLA NEHRU GRIHANIRMAN SAHAKARI SANSTHA MARYADIT THROUGH RAJKUMAR KHATURIYA Vs SHITLESHWAR GRIHANIRMAN SAHAKARI SANSTHA MARYADIT) 02-05-2017 Shri Prateek Maheshwar, counsel for the petitioner. Shri D. Kshirsagar, counsel for respondent no. 1
None for respondent no. 2 though served. Shri Romesh Dave, GA for respondent / State. The petitioner has filed this present writ petition being aggrieved by the order dated 27/11/2014, by which, his application under Order 6 Rule 17 of C.P.C seeking amendment in the counter claim has been rejected. 2 Respondent no. 1 / plaintiff has filed suit, in which, the present petitioner has filed counter claim on the basis of the sale deed dated 21/08/2003. At the time of filing of the counter claim, the said sale deed was pending before the Registrar for its registration and impounding before the Registrar of Stamp. Thereafter, vide order dated 29/04/2010, it was decided that the stamp duty is not liable to be paid on that sale deed. By way of proposed amendment, the defendant / present petitioner wanted to bring those registered sale deed on record, but the trial Court has rejected the said application, on the ground that registration of sale deed has not attained finality, because probate suit is pending in respect of the sale deed.
3 Shri Kshirsagar, counsel appearing for the respondent has opposed the relief claimed in this petition and submitted that the relief claimed in the counter claim itself is time barred, therefore, the present amendment has rightly been rejected by the trial court. 4 The suit is pending since 2005 and at present, the same is at the stage of plaintiff's evidence. The proposed amendment is based on the subsequent development and only that subsequent development has been sought to be bring on record by way of application under Order 6 Rule 17 of C.P.C. The defendant / present petitioner does not claim any additional relief which can be treated as time barred. Amendment is only in respect of that, now the sale deed has been exempted from payment of stamp duty by order dated 29/04/2010. No additional relief has been claimed by way of amendment, therefore, the trial Court has wrongly rejected the application entering into the merits of the amendment. It is settled law that while deciding the application for amendment, merit is not required to be seen, because the same is a matter of evidence to be decided.
5 Hence, the impugned order is set aside and the application for amendment in counter claim is allowed. The trial Court shall permit the defendant to amend his counter claim. The plaintiff is also permitted to amend his written statement to counter suit, if he so desires. 6 Since the suit is more than five years old , therefore, the trial Court is requested to decide the same finally by the end of end of this year 31/12/2017. Both the parties are directed to co-operate for early disposal of this petition.
Present writ petition is allowed accordingly. C c as per rules (VIVEK RUSIA) JUDGE