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2015 Supreme(MP) 553
MADHYA PRADESH HIGH COURT AT GWALIOR BENCH
Rohit Arya, J.
Bholanath - Appellant
Versus
Kamlesh Gupta and Ors. - Respondent
W.P. No. 515-2013
Decided On : 25-06-2015
For the Petitioner:Sarvesh Sharma, Advocate.
Headnote:Civil P.C., 1908 -- O.6 R.17 -- scope of powers -- after filing written statement -- certain facts came to knowledge of plaintiff -- regarding such facts -- amendment sought in plaint -- amendment bona fide -- nature of suit does not change -- for proper and effective adjudication of case -- relevant -- trial Court committed error in rejecting such application as barred by time -- amendment allowed by High Court.
Held : Considering the sequence of facts narrated by defendant in written statement, in the opinion of this Court amendments sought are bona fide and relevant for proper and effective adjudication of the case and does not change the nature of the suit. If the amendments are refused, it would lead to prejudice and may further lead to multiple of litigation.
The contention of defendants that proposed amendments are barred by limitation cannot be countenanced at this stage as there is a specific averment in the application under Order VI rule 17 CPC that the fact sought to be brought on record, came to the knowledge of plaintiff only after the written statements were filed by defendants (paras 4 and 7). Question of limitation is essentially a question of fact and without affording opportunity to either party, same cannot be addressed by the Court in the facts and circumstances of the instant case. Therefore, trial Court has committed error of law and fact while rejecting the application holding that the amendment are barred by time. AIR 1921 PC 50 relied on. (2009)10 SCC 84 followed. (2004)3 SCC 382 and 2008(3) MPLJ 460 referred to.
flfoy izfØ;k lafgrk] 1908 && vk-6 fu-17 && 'kfDr;ksa dh O;kfIr && fyf[kr dFku izLrqr djus ds i'pkr~ && dfri; rF; oknh dh tkudkjh esa vk, &&,sls rF;ksa ds lacaèk esa && okn&i= eas la'kks/ku pkgk x;k && la'kks/ku ln~Hkkfod && okn dk Lo:i ugha cnyrk &&izdj.k ds leqfpr,oa izHkkodkjh U;k;fu.kZ;u ds fy, && lqlaxr && fopkj.k U;k;ky; us,sls vkosnu dks le; oftZr ekudj [kkfjt djus esa =qfV dh gS && mPp U;k;ky; }kjk la'kks/ku eatwj fd;k x;kA
vfHkfu/kkZfjr % izfroknh }kjk fyf[kr dFku esa of.kZr rF;ksa ds vuqØe esa fopkj djus ij] bl U;k;ky; dh jk; esa pkgs x, la'kks/ku ln~Hkkfor vkSj bl izdj.k ds leqfpr,oa izHkkodkjh U;k;fu.kZ;u ds fy, lqlaxr gSa rFkk okn dk Lo:i ugha cnyrkA ;fn la'kks/kuksa dks vLohÑr fd;k tkrk gS] blls izfrdwy izHkko iM+sxk vkSj vkxs cgq&eqdnesackth c<+k ldrk gSA
bl izØe ij izfroknhx.k ds bl rdZ dk leFkZu ugha fd;k tk ldrk fd izLrkfor la'kks/ku ifjlhek oftZr gS] D;ksafd vkns'k 6 fu;e 17 ds v/khu vkosnu esa fofufnZ"V izdFku gSa fd vfHkys[k ij ykuk pkgk x;k rF;] oknh ds tkudkjh esa dsoy izR;FkhZx.k ¼iSjk 4 rFkk 7½ }kjk fyf[kr dFku izLrqr djus ds i'pkr~ vk;kA ifjlhek dk iz'u vko';d :i ls rF; dk iz'u gS vkSj fdlh Hkh i{kdkj dks volj iznku fd, fcuk] mls bl izdj.k ds rF;ksa vkSj ifjfLFkfr;ksa esa U;k;ky; }kjk lacksf/kr ugha fd;k tk ldrkA blfy,] fopkj.k U;k;ky; us la'kks/ku le; oftZr vfHkfu/kkZfjr djrs gq, vkosnu [kkfjt djus esa fof/k vkSj rF; dh =qfV dh gSA, vkb vkj 1921 ih lh 50 voyafcrA ¼2009½10,l lh lh 84 vuqlfjrA ¼2004½3,l lh lh 382 rFkk 2008¼3½,e ih,y ts 460 fufnZ"VA
¼iSjk 18,oa 19
Rohit Arya, J.
1. By this writ petition under Article 227 of the Constitution of India, petitioner has challenged the legality, validity and proprietary of the order dated 13/9/2012 passed by trial Court dismissing the application of the petitioner/plaintiff under Order VI Rule 17 CPC.
2. With the consent of parties, matter is heard finally.
3. It is consider apposite to describe the family genealogy before addressing on relevant facts necessary for disposal of this petition.
4. One Late Jagannath Gupta was the nucleus of the family married to one Mayadevi who died in year 1995. Late Jagannath Gupta was survived by his wife Late Mayadevi and four sons namely D.K. Gupta, Bholanath (petitioner/plaintiff), Ashok Gupta and Bharat (died unmarried). D.K. Gupta died in year 1990. He survived by wife Smt. Kamlesh and sons Prameer and Naveen, who are defendants No. 1 to 3.
5. Plaintiff has filed a suit for declaration, rendition of accounts and permanent injunction seeking the relief that he be declared owner of 1/3 share of undivided property of joint Hindu Family described in para 1 of the plaint including House No. 42, Old Halka No. 24, New Halka No. 26/754, Ward No. 31 situated at Gurudwara Chauraha, MLB Road, Gwalior and for rendition of account of rent, realized by defendants No. 1 to 3, of the Joint Family Property as well as mandatory injunction to deposit the said amount in his account and petitioner/plaintiff be held entitled for 1/3 thereof with further relief that defendants No. 1 to 4 be restrained from raising any construction over suit property, alienating or creating any third party rights in respect of suit property.
6. Defendants filed separate written statement.
7. Petitioner/plaintiff filed an application under Order VI Rule 17 CPC for amendment inter alia contending that upon perusal of written statement, documents filed therewith and affidavits, he came to know that defendants have claimed title over house No. 42 Old Halka No. 24, New Halka No. 26/754, Ward No. 31 situated at Gurudwara Chauraha, MLB Road, Gwalior on the strength of sale deed dated 23/4/1988 allegedly executed by Late Smt. Mayadevi (the mother) in favour of husband of defendant No. 1 and father of defendants No. 2 and 3, Shri D.K. Gupta. The suit property was in possession of Late Shri D.K. Gupta and after his death defendants No. 1 to 3 continued to be in possession thereof. It is further pleaded that in fact suit property devolved upon Late Smt. Mayadevi by way of Will executed by Late Jagannath Gupta on 21/3/1972, thereafter, though Late Smt. Mayadevi executed a power of attorney dated 23/12/1987 in favour of defendant No. 1, but on the basis of same, sale deed was got registered by defendant No. 1 on 23/4/1988. Plaintiff submitted that thus for the first time the aforesaid facts came to his knowledge in respect of aforementioned suit property which alleged to have been of the ownership, title and possession of defendants No. 1 to 3. Therefore, the amendment in the plaint was sought to the effect that the alleged Will dated 21/3/1972 is a forged document prepared in connivance and collusion of Late D.K. Gupta and defendants No. 1 to 3. Further the alleged sale deed dated 23/4/1988 is a forged and fabricated document got executed and registered with the strength of alleged power of attorney in favour of his wife Smt. Kamlesh by his mother Mayadevi, therefore, the documents have been interfered with calculated intention to deprive the plaintiff from his share in the joint family property. Further without partition being executed between the members of Joint Family neither Late D.K. Gupta nor defendants No. 1 to 3 could claim to have any title and/or exclusive possession over the suit property to the exclusion of the plaintiff. Amendments sought in detail to the aforesaid effect are in paragraph 10 and with the further amendment in the prayer clause that sale deed dated 23/4/1988, partition deed dated 27/8/1997 between defendants No. 1 to 3 and
