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2016 Supreme(MP) 28
MADHYA PRADESH HIGH COURT
Rohit Arya, J.
Munni Bai (Smt.) v. Smt. Ram Kunwar and others
Writ Petition No.1746 of 2015 (Gwalior) : against the order dated 9.3.2015, passed by trial Court; Decided on 12.1.2016.
V.K. Bharadwaj with Anvesh Jain for petitioner;
M.B. Mangal for respondents.
Headnote:Civil P.C., 1908 -- O.6 R.17 -- scope of power under -- amendment sought after ten years of filing of written-statements -- suit for recovery of possession decreed and attained finality -- no explanation offered as to why fact of claim of title to suit property on basis of alleged Will dated 28.2.1986 not incorporated in written-statement in year 2005 -- no such plea taken in previous civil proceedings -- at stage when plaintiff and defendant closed evidence -- amendment sought by defendant No.3 who remained ex parte -- could not have been countenanced by trial Court after ten years of filing of written-statements -- patent illegality and jurisdictional error in impugned order -- same is set aside -- petition allowed.
Held : The jurisdiction of the Court under Order VI rule 17 CPC though is discretionary in nature, but is a judicial discretion and required to be exercised with circumspection bearing in mind the basic considerations while considering the amendment. The aforesaid power is controlled and regulated by proviso thereto in CPC w.e.f. 1.7.2002, whereunder the trial Court is first required to address on jurisdictional facts related to amendment.
In the instant case, as referred above, no explanation has been offered as to why the fact of claim of title to the suit property on the basis of alleged Will dated 28.2.1986 was not incorporated in the written-statement in the year 2005. Besides, in previous proceedings (Civil Suit No.174-A/1991) no such plea was taken. Thereafter, at the stage when the plaintiff and defendants has closed the evidence, the amendment sought by defendant No.3, who remained ex parte, could not have been countenanced by the trial Court after 10 years of filing of written-statement. Hence, there, appears to be patent illegality and jurisdictional error in the order impugned. Accordingly, the same is set aside. 2009(3) MPLJ 122 (SC) followed.
flfoy izfØ;k lafgrk] 1908 && vk-6 fu-17 && mica/kksa ds v/khu 'kfDr dh O;kfIr && fyf[kr dFku dh izLrqfr ds nl o"kZ i'pkr~ la'kks/ku pkgk x;k && dCtk olwyh ds fy, okn fMØh fd;k x;k tks vafrerk dks izkIr gqvk && vfHkdfFkr foy fnukad 28-2-1986 ds vkèkkj ij okn laifÙk ds gd ds nkos dk rF; 2005 esa fyf[kr dFku esa lfEefyr D;ksa ugha fd;k x;k] ds ckjs esa fdlh Li"Vhdj.k dh izLFkkiuk ugha dh xbZ && iwoZ dh flfoy dk;Zokgh esa ,slk dksbZ vfHkokd~ ugha fy;k x;k && tc oknh rFkk izfroknh us lk{; lekIr fd, tkus ds izØe ij && izfroknh Ø-3 tks ,di{kh; jgk] }kjk la'kks/ku pkgk x;k && fyf[kr dFku dh izLrqfr ds nl o"kZ i'pkr~ fopkj.k U;k;ky; }kjk vuqeksnu ugha fd;k tkuk pkfg, Fkk && vk{ksfir vkns'k esa izR;{k voS/krk rFkk vf/kdkfjrk fo"k;d =qfV && tks vikLr && ;kfpdk eatwjA
vfHkfu/kkZfjr % flfoy izfØ;k lafgrk ds vk-6 fu-17 ds v/khu U;k;ky; dh vf/kdkfjrk ;|fi oSosfdd izd`fr dh gS fdarq U;kf;d foosdkf/kdkj gS rFkk la'kksèku ij fopkj djrs le; cqfu;knh ckrsa /;ku esa j[krs gq, lko/kkuh ls iz;ksx djuk visf{kr gSA iwoZdfFkr 'kfDr flfoy izfØ;k lafgrk ds fy, 1-7-2002 ls izkjaHk gq, mica/k }kjk fu;af=r rFkk fofu;fer gS ftlds v/khu fopkj.k U;k;ky; }kjk loZizFke la'kks/ku ls lacaf/kr vf/kdkfjrk fo"k;d rF;ksa ij fopkj djuk visf{kr gSA
rkRdkfyd ekeys esa] tSlk fd Åij fufnZ"V fd;k x;k vfHkdfFkr foy fnukad 28-2-1986 ds vk/kkj ij okn laifÙk ds gd ds nkos dk rF; 2005 esa fyf[kr dFku esa lfEefyr D;ksa ugha fd;k x;k] ds ckjs esa fdlh Li"Vhdj.k dh izLFkkiuk ugha dh xbZA blds vfrfjDr iwoZ dh dk;Zokgh ¼flfoy okn Ø-174&d@1991½ esa ,slk dksbZ vfHkokd~ ugha fy;k x;kA blds i'pkr~ tc oknh rFkk izfroknh us lk{; lekIr fd, tkus ds izØe ij izfroknh Ø-3 tks ,di{kh; jgk] }kjk la'kks/ku pkgk x;kA fyf[kr dFku dh izLrqfr ds nl o"kZ i'pkr~ fopkj.k U;k;ky; }kjk vuqeksnu ugha fd;k tkuk pkfg, Fkk blfy,] vk{ksfir vkns'k esa izR;{k voS/krk rFkk vfèkdkfjrk fo"k;d =qfV izdV gksrh gSA rn~uqlkj] mls vikLr fd;k x;kA 2009¼3½ ,e ih ,y ts 122 ¼,l lh½ vuqlfjrA
1. This writ petition under Article 227 of the Constitution of India is directed against the order dated 9.3.2015 passed by the trial Court. Defendant No.3's application under Order VI rule 17 CPC has been allowed by the aforesaid order.
2. Facts relevant and necessary for disposal of this writ petition are to the following effect :
Plaintiff has filed a suit for possession, mense profit and permanent injunction inter alia contending that the suit house is of her ownership. Her husband late Chimmanlal Sharma during his lifetime had filed a suit (Civil Suit No.174-A/1991) against late Babulal, husband of defendant No.1 and father of defendants No.2 to 6, for declaration. The same was decreed on 27.1.1995, whereunder the suit property was declared to be of the ownership of late Chimmanlal Sharma and late Babulal was held to be licensee of premises. The said order has attained finality. As the relief of possession was not sought, therefore, the instant suit has been filed.
3. It has been contended in the suit that after death of late Babulal on 28.4.2003 though the licence had come to an end, but respondents-defendants continued to be in possession thereof and since they resisted delivery of possession and took recourse to criminal activity, hence, the instant suit for recovery of possession has been filed.
4. Defendants No.1, 3 and 4 filed separate written-statement on 23.8.2005, 8.8.2005 and 17.3.2006. Defendants denied the plaint averments mainly on the premise that the suit property is of the ownership of plaintiff, instead plleaded that Babulal was the owner of the suit property and after his death defendants hold the title thereof.
5. On the aforesaid pleadings, trial Court framed issues on 4.10.2005 and additional issues are also framed on 17.3.2006. Plaintiff completed evidence on 3.2.2006. Subsequently, Santosh Kumar was examined and re-examined on 23.4.2014. DW1 was examined on 2.7.2014, DW2 was examined on 7.10.2014 and subsequently, defendant No.3 Ramgoopal Jha filed an affidavit on 9.1.2015 as a witness of defendant No.4. He also filed an application under Order VIII rule 1 CPC. The same was dismissed by the trial Court on 23.1.2015. Thereafter, defendant No.3 filed an application under Order VI rule 17 CPC on 27.2.2015. Reply to the application was filed. The application has been allowed by the impugned order dated 9.3.2015.
6. By way of amendment defendant No.3 sought to incorporate the fact that Nathiyabai; the only daughter of Tejram, during her lifetime had propounded a Will on 28.2.1986 in favour of defendant bequeathing the suit property. The occasion for amending the written-statement has arisen for the reason that the plaintiff during the course of her evidence has stated that the suit property had devolved upon her husband after death of Tejram; the original owner of the suit property since he had adopted her husband late Chimmanlal Sharma and further amendment that Tejram had not adopted late Chimmanlal Sharma. Hence, according to the defendant, aforesaid proposed amendment was consequential and, therefore, the trial Court has rightly allowed the amendment.
7. In reply, plaintiff opposed the application on the premise that the amendment is sought to be incorporated after trial has commenced, plaintiff has closed her evidence and defendants witnesses have also closed the evidence. Defendant No.3 was ex parte. Amendment sought to be incorporated are not such amendment which despite due diligence could not have been incorporated in the written-statement, hence, by force of proviso to Order VI rule 17 CPC the aforesaid amendment cannot be allowed, as the title to the suit property is sought to be claimed on the basis of alleged Will dated 28.2.1986. Thee is no explanation offered in the application of justification for having not incorporated the said fact while filing the written-statement, which was filed in the year 2005, therefore, after more than 10 years the amendment based ont he alleged Will is said to b
