The correctness of the pleadings should be adjudicated after considering the evidence in the trial, and the trial court must consider the aspect of subsequent events when dealing with applications for amendment under Order 6 Rule 17 of CPC.

JUDGMENT

ORDER

1. This petition, under Article 227 of the Constitution of India, has been filed against the order dated 27.06.2022 passed by the Sixth Civil Judge, Junior Division, Sehore, District Sehore in RCS No.129-A/2016, by which the application filed by the petitioner under Order 6 Rule 17 of CPC for amendment in the counter claim has been rejected on the ground that the petitioner has failed to file any document to show that he has been dispossessed during the pendency of the suit.

2. The facts necessary for disposal of the present petition, in short, are that the respondent nos.1 to 4 have filed a suit for declaration and permanent injunction. Respondent no.5 is the defendant no.2 in the civil suit; whereas petitioner is the defendant no.1 in the civil suit. The petitioner filed his written statement along with a counter claim claiming declaration of title and permanent injunction in respect of the land in dispute. The petitioner thereafter filed an application under Order 6 Rule 17 of CPC on the ground that on 11.06.2022 the plaintiff no.1/respondent no.1 and the defendant no.2/respondent no.5 have illegally taken possession of the land in dispute. The petitioner came to know about this fact on the next date i.e. on 12.06.2022 and accordingly an application for amendment was filed on 16.06.2022 claiming a decree for possession of the land in dispute as well as the mesne profits. The said application was opposed by the respondents.

3. The trial court by the impugned order dated 27.06.2022 has rejected the application only on the ground that the petitioner/defendant no.1 has not filed any document to show that the respondent no.1 to 4/plaintiffs have forcefully taken possession of the land in dispute.

4. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that the correctness of the pleadings are not to be adjudicated at the time of consideration of an application under Order 6 Rule 17 of CPC and it is a matter, which is to be decided after considering the pleadings as well as the evidence of the parties in the trial. There is no delay in filing an application because in the amendment application itself, it was mentioned that the petitioner/defendant no.1 was dispossessed on 11.06.2022 and he came to know about this fact on 12.06.2022 and the application for amendment was filed on 16.06.2022. Since the proposed amendment was based on the subsequent events, therefore, the trial court should have considered the application accordingly.

5. Per contra, the petition is vehemently opposed by the counsel for the respondents. It is submitted that since the trial had begun, therefore, the trial court did not commit any mistake by rejecting the application.

6. Heard the learned counsel for the parties.

7. The petitioner/defendant no.1 has not only filed his written statement but has also filed his counter claim against the plaintiff as well as the defendant no.2 and has sought declaration of title as well as permanent injunction in respect of the property in dispute. It was the case of the petitioner that he is in possession of the property in dispute. By filing an application under Order 6 Rule 17 of CPC, it is the claim of the petitioner that he has been dispossessed on 11.06.2022 and this fact came to his knowledge on 12.06.2022. Ultimately, if it is found that the petitioner is not in possession of the land in dispute, then his counter claim would liable to be rejected only on the ground that consequential relief for possession has not been claimed. Whether the petitioner was dispossessed on 11.06.2022 or not is yet to be proved by the petitioner by leading cogent evidence before the trial court. It is open for the plaintiff as well as defendant no.2 to prove that the petitioner was never in possession and his claim that he was dispossessed on 11.06.2022 is false and is an afterthought. In nutshell, it is held that whether the pleadings made in the application under Order 6 Rule 17 of C