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2014 Supreme(MP) 833
MADHYA PRADESH HIGH COURT AT JABALBUR BENCH
Alok Aradhe, J.
Sonu Dubey - Appellant
Versus
Virendra Kumar Rai and others - Respondent
W.P.No. 15988 of 2013
Decided On : 03-04-2014
For the Petitioner: Ashish Shroti.
For the Respondent No. 1: S. A. Shah.
For the Respondent Nos. 2 to 5: Akhilesh Jain.
The main legal point established is that the exercise of due diligence is crucial in seeking amendments to pleadings, and the acceptance of costs does not preclude the right to challenge an order.
Headnote:
Amendment - Civil Procedure - Order 6 Rule 17 - [Gautam Sarup vs. Leela Jetly and others, 2008(4) MPLJ (S.C.) 113 = (2008) 7 SCC 85, Chander Kanta Bansal vs. Rajinder Singh Anand, 2008(4) MPLJ (S.C.) 269 = (2008) 5 SCC 117, Rajkumar Gurawara (dead) through LRs. vs. S. K. Sarwagi and Company Private Limited and another, (2008) 14 SCC 364, Abdul Rahmankhan and another vs. Failkus Mohamadkhan and others, AIR 1934 Nagpur 163] - The court discussed the exercise of due diligence in seeking amendment, the degree of prejudice caused by pre-trial and post-trial amendments, and the right to challenge an order after accepting costs. The court found that the proposed amendment was belated and failed to show due diligence, leading to the quashing of the trial court's order.
Fact of the Case:
The plaintiffs filed a suit claiming ownership of certain lands, which were unilaterally sold by the defendants. The defendants sought to amend their written statement after a delay of approximately 4-1/2 years to include a plea regarding a document for maintenance.
Finding of the Court:
The court found that the proposed amendment was belated and failed to show due diligence, leading to the quashing of the trial court's order.
Issues: The main issue was the validity of the trial court's order allowing the belated amendment of the written statement by the defendants.
Ratio Decidendi: The court held that the defendants failed to show due diligence in seeking the amendment, and the acceptance of costs did not preclude the right to challenge the order.
Final Decision: The writ petition was allowed, and the trial court's order was quashed.
Shri Ashish Shroti, learned counsel for the petitioners.
Shri S. A. Shah, learned counsel for respondent No. 1.
Shri Akhilesh Jain, learned counsel for respondents No. 2 to 5.
With consent of the parties, the matter is heard finally.
In this writ petition under Article 227 of the Constitution of India, the petitioners have challenged the validity of the order dated 17-7-2013 passed by the trial Court by which application for amendment of the written statement filed by respondents No. 2 to 5, has been allowed.
2. Facts giving rise to filing of the writ petition briefly stated are that the petitioner/plaintiff filed the suit inter alia on the ground that one Vishnu Prasad was the owner of certain lands. Aforesaid Vishnu Prasad had two wives. The plaintiffs are the children from the second wife whereas, defendant No. 2 is the first wife of late Vishnu Prasad and defendants No. 3 to 5 are children from the first wife. After the death of Vishnu Prasad, the property held by him devolved on plaintiffs as well as defendants No. 2 to 5. However, defendants No. 2 to 5 unilaterally sold the suit property to defendant No. 1. Thereupon, the plaintiffs filed the suit seeking the relief of declaration and permanent injunction on or about 9-11-2004.
3. In the written statement, defendants No. 2 to 5 inter alia denied the claim of the plaintiffs. It was pleaded that plaintiffs are not related in any manner with the deceased Vishnu Prasad. The plaintiffs adduced their evidence in the year 2009. On 29-1-2009, the case was fixed for recording the defendants' evidence. The defendants No. 2 to 5 filed an application after a period of approximately 4-1/2 years on or about 18-6-2013 seeking amendment of the written statement. By way of proposed amendment, defendants No. 2 to 5 wanted to incorporate the plea that late Vishnu Prasad had executed "Parvarishnama" in favour of defendant No. 2 for her maintenance.
4. The trial Court by the impugned order dated 17-7-2013 allowed the application for amendment and held that plaintiffs can be compensated in terms of cost.
5. Learned counsel for the petitioners submitted that the trial Court ought to have appreciated that the proposed amendment was highly belated and no explanation was offered for the delay and the proposed amendment if allowed, would change the nature of the suit. In support of his submissions, learned counsel for the petitioners has placed reliance on decisions of Supreme Court in Mashyak Grih Nirman Sahakari Sanstha Maryadit vs. Usman Habib Dhuka and others, (2013) SCC 485 and Vidyabai and others vs. Padmalatha and another, 2009(3) MPLJ (S.C.) 122 = (2009) 2 SCC 409.
6. On the other hand, learned counsel for respondents No. 2 to 5 has submitted that defendants No. 2 to 5 were not in possession of the documents and the proposed amendment is necessary for a fair and complete adjudication of the controversy involved in the suit. It is further submitted that since the plaintiffs have accepted the amount of cost, therefore, they cannot be permitted to challenge the order passed by the trial Court. In support of his submissions, learned counsel for respondents No. 2 to 5 has placed reliance on decisions reported in Rajesh Kumar Aggarwal and others vs. K. K. Modi and others, 2006(3) MPLJ 215, Mangilal, s/o. Ratanlal Patidar and others vs. Dambarlal s/o. Ratanlal Patidar and another, 2007(4) MPLJ 200, Neeta Narang vs. Beena Valicha, 2011(1) MPLJ 239, Radheshyam Palod etc., vs. Smt. Shantidevi and others etc., AIR 1994 NOC 191 and Devinder Singh vs. Jaspal Kaur, AIR 1999 Punjab and Haryana 229.
7. I have considered the submissions made by learned counsel for the parties. In Gautam Sarup vs. Leela Jetly and others, 2008(4) MPLJ (S.C.) 113 = (2008) 7 SCC 85, it has been held that while dealing with the prayer for amendment in the written statement, the discretion has to be exercised judicially. In Chander Kanta Bansal vs. Rajinder Singh Anand, 2008(4) MPLJ (S.C.) 269 = (2008) 5 SCC 117, the Supreme Cou
