1. These petitions filed under Article 227 of the Constitution are directed against the same impugned Order passed in Civil Suit No.15A / 92 by the Additional District Judge, Mungawali, dated 28.11.2000. On joint request, matters were analogously heard and decided by this common Order.

WP No.1343 /2004

2. Shorn of unnecessary details, the relevant facts are that the petitioner/plaintiff filed a civil suit against Inayat Hussain. Inayat Hussain died during the pendency of the suit and his legal heirs were brought on record along with respondents No.2 to 13 and their legal representatives. The suit was filed for declaration and permanent injunction with further prayer of restoration of possession. The plaintiff stated that suit house is situated at ward No.2, Jawahar Marg, Mungawali, Distt. Guna.

3. It is the case of the plaintiff that plaintiff’s father Kurwan Hussain had four sons, namely, Ali Hussain (plaintiff), Inayat Hussain, Noor Hussain and Abbas Hussain. Abbas Hussain died in the year 1966 and his legal heirs are defendants No.2 to 9. Another brother of the plaintiff, Noor Ali died in the year 1984 and his legal heirs were impleaded. According to the plaintiff, there was a partition between the brothers during the life time of the father and the suit house fell to the share of plaintiff. After two years of the partition, father of the plaintiff Kurwan Hussain died and plaintiff became the sole owner of the property. According to the plaintiff, out of two shops, one shop had fallen to the share of plaintiff and the other to the share of defendant No.1. This portion of the property is situated at Naya Bazar, Mungawali. The plaintiff further stated that Inayat Hussain was carrying on his business at Ashok Nagar as well, but he had shifted to Mungawali before 20 years and wanted to carry on his business at Mungawali. In this suit, defendant No.1 filed his written statement, thereafter, the Court below has framed the issues. The plaintiff lead his evidence. Thereafter, the defendant also examined himself. Certain other witnesses of the defendant entered the witness box and deposed their statements. Before completion of defense evidence, the defendant moved an application under Order 6 rule 17 CPC on 28.9.2000. In addition, he filed counter claim on the ground that he had acquired right by virtue of adverse possession and the legal heirs of the defendant No.1 acquired the right by virtue of adverse possession being in possession for more than 12 years as the owner of the suit property. The application for amendment and counter claim were opposed by the present petitioner. The trial Court after hearing parties on this aspect allowed the amendment application and partly allowed the counter claim. This Order of Court below dated 28.11.2000 is called in question in both the petitions. The Court below has disallowed the part of the counter-claim in which the defendants intended to include a different property than the suit property. In other words, the suit was filed pertaining to a property situated at Mungawali. A part of counter claim which has been rejected contains a property situated at Ashok Nagar. The Court below opined that by counter claim the scope of suit cannot be extended.

4. Shri N.K. Jain, Senior counsel, criticized the Order whereby the Court below has allowed the amendment application at the stage of almost closure of defense evidence. Learned counsel heavily relied on proviso to Order 6 rule 17 CPC and the judgment of Supreme Court in the case of (Vidyabai and others v. Padmalatha and another) reported in (2009) 2 SCC 409 . He also relied on 2009 (1) MPWN 23 (Indus Colonisers (P) Ltd. v. Shadab Grih Nirman Sahkari Samiti, Bhopal and another). It is contended that after insertion of proviso, unless due diligence is established, amendment cannot be allowed. Criticizing the Order, whereby counter claim is partly allowed, learned senior counsel relied on AIR 2001 Karnataka 10 (Hanumanthagouda v. Bandu @ Bandeppa