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2017 Supreme(MP) 998
IN THE HIGH COURT OF MADHYA PRADESH
VIJAY KUMAR SHUKLA, J.
MADHAV GOGIA - Appellant
Versus
K. FATIMA KHURSHEED - Respondent
S.A. No. 358 of 2015
Decided on : 18-01-2017
Advocate Appeared:
For the Appellant :Amit Verma, Advocate
For the Respondent:Dinesh Kaushal, Advocate
The importance of diligence and adherence to the provisions of the Limitation Act in considering applications for amendment.
Headnote:
Amendment - Challenge to Judgment and Decree - M.P. Accommodation Control Act, 1961 - Section 12(1)(a), 12(1)(f)
Fact of the Case:
The appellant challenges the judgment and decree passed in Civil Appeal No. 144-A/2014, seeking eviction on the grounds of section 12(1)(a) and 12(1)(f) of the M.P. Accommodation Control Act, 1961. The appellant seeks to amend the appeal to challenge the judgment and decree passed in Civil Appeal No. 145-A/2014 after a delay of more than one and a half years.
Finding of the Court:
The court rejects the application for amendment under Order 6, Rule 17 of the Civil Procedure Code, citing delay and bypassing the provisions of the Limitation Act. The court finds no perversity in the judgment and decree related to the passing of the decree under section 12(1)(a) and dismisses the appeal.
Issues: The main issue is whether the appellant can be permitted to challenge the judgment and decree passed in Civil Appeal No. 145-A/2014 after a significant delay.
Ratio Decidendi: The court emphasizes the importance of diligence and the provisions of the Limitation Act in considering applications for amendment. It cites relevant case law to support the rejection of the application for amendment.
Final Decision: The appeal is dismissed, and the appellant is granted three months' time to vacate the premises.
VIJAY KUMAR SHUKLA, J.
1. This is an appeal filed by the appellant/defendant challenging judgment and decree dated 19-2-2015 passed by the 9th Additional District Judge, Bhopal in Regular Civil Appeal No. 144-A/2014, parties being Madhav Gogia v. Smt, K. Fatima Khursheed arising out of the judgment and decree dated 29-4-2014 passed by the learned Court of 9th Civil Judge Class-I, Bhopal in Regular Civil Suit No. 96-A/2012.
2. Heard on admission as well as I.A. No. 10780/2016 and also on I.A. No. 16270/2016 filed under Order 6, Rule 17 of the Civil Procedure Code.
3. The learned counsel for the respondent vehemently opposes the application for amendment filed under Order 6, Rule 17 of the Civil Procedure Code.
4. The learned counsel for the respondent submits that the suit for eviction was filed by the respondent plaintiff on the ground of section 12(1)(a) and 12(1)(f) of M. P. Accommodation Control Act, 1961 (hereinafter referred as "Adhiniyam"). The trial Court vide judgment and decree dated 29-4-2014 decreed the suit on the ground of section 12(1)(a) but did not find proof of bona fide need under section 12(1)(f) of the Adhiniyam. Being aggrieved by the judgment and decree, both the appellant/defendant and the respondent/plaintiff filed two separate appeals. The appeal filed by the plaintiff was registered as Civil Appeal No. 145-A/2014 Smt. K. Fatima Khursheet v. Madhav Gogia and the appeal filed by the the present appellant/defendant was registered as Civil Appeal No. 144-A/2014 Madhav Gogia v. K. Fatima Khursheed. Both the appeals were decided by the common judgment and decree dated 19-2-2015 by which the appeal filed by the appellant/defendant, Civil Appeal No. 144-A/2014 has been dismissed and the appeal filed by the respondent plaintiff No. 145-A/2014 has been allowed. Thus the decree for eviction has been passed on the ground of section 12(1) (a) and as well as on the ground under section 12(1)(f) of Adhiniyam. An objection has been raised that the present appeal was filed only against the judgment and decree passed in Civil Appeal No. 144-A/2014 by which the appeal filed by the present appellant/defendant was dismissed and there was no challenge to the judgment and decree passed in Civil Appeal No. 145-A/2014 by which the appeal filed by the plaintiff for passing a decree under section 12(1)(f) was allowed.
5. From the cause title and also from the relief claimed in the appeal, it is crystal clear that the present appeal was filed on 17-3-2015, challenging the impugned judgment and decree passed in Civil Appeal No. 144-A/2014 in the case of Madhav Gogia v. Smt. K. Fatima Khursheed. When this objection was raised, appellant filed an application for amendment under Order 6, Rule 17 read with Section 151 of the Civil Procedure Code seeking permission to amend the appeal and to permit him to challenge judgment and decree passed in Regular Civil Appeal No. 145-A/2014. This application was filed on 30-11-2016 seeking permission to challenge the judgment and decree dated 19-2-2015 passed in Regular Civil Appeal No. 145-A/2014.
6. The learned counsel for the appellant relies on judgment passed by this Court in the case of Bhagchand v. Administrator, Municipal Corporation, Indore, reported in 2005(2) M.P.L.J. 262. The learned counsel for the respondent opposes the said application on the ground that the amendment under Order 6, Rule 17 can be allowed only in the pleadings and not for challenging the judgment and decree in the present appeal by seeking amendment in the relief clause. He further submits that the proposed amendment would amount to permitting the appellant to challenge the judgment and decree passed on 19-2-2015 after inordinate delay as the appeal would be barred by limitation and provisions of Indian Limitation Act cannot be by-passed under the guise of an application for amendment under Order 6, Rule 17 of the Civil Procedure Code. He relies on the judgment passed in the case of Neelu Bai v. Phagumal, 2011(1)
