Riyazuddin vs Nisaruddin @ Antim Lala

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(MP) 206

IN THE HIGH COURT OF MADHYA PRADESH
Subodh Abhyankar, J.
Riyazuddin v. Nisaruddin @ Antim Lala & Others
Miscellaneous Petition No. 1689 of 2023 (Indore);
Decided on 22.3.2024.

Advocates:
Harish Chandra Tripathi for petitioner;
A. S. Garg with Jitendra Shukla for respondents No. 1 to 4.

Headnote:
flfoy çfØ;k lafgrk] 1908 && vk- 6 fu- 17 rFkk vk- 41 fu- 27 && okni= esa la'kksèku && O;kns'k ds fy, okn lk{; vfHkfyf[kr djus ds i'pkr~ [kkkfjt && vihy U;k;ky; us vfHkys[k ij vfrfjä nLrkost ykus ds fy, vk- 41 fu- 27 ds v/khu vkosnu eatwj fd;k rFkk vfrfjä foo|kdksa ij fofu'p;u ds fy, ekeyk çfrçsf"kr fd;k && mu nLrkostksa ds laca/k esa okni= esa la'kks/ku dh bZIlk dh xbZ && fopkj.k U;k;ky; us vkosnu bl vk/kkj ij ukeatwj dj fn;k fd la'kks/ku ds fy, vkosnu vlE;d~ foyac ds i'pkr~ çLrqr fd;k x;k gS && vfHkfu/kkZfjr && oknh us vuqrks"k [kaM esa la'kks/ku dh bZIlk ugha dh vr% ;g ugha dgk tk ldrk fd la'kksèku ls okn dh ç—fr ifjofrZr gks tk,xh && çfrçs"k.k ds i'pkr~ fupys U;k;ky; dh vf/kdkfjrk çfrçs"k.k vkns'k ds fuca/kuksa ij fuHkZj gksrh gS && vihy U;k;ky; us fopkj.k U;k;ky; dks vfrfjä fook|d ;fn gksa] fojfpr djus rFkk mUgsa fof/k ds vuqlkj fofuf'pr djus dk funs'k fn;k && vr%] ek= blfy, fd vihy U;k;ky; us fopkj.k U;k;ky; dks la'kks/ku ds fy, vkosnu xzg.k djus dk fofufnZ"V funs'k ugha fn;k] ;g vuqeku ugha yxk;k tk ldrk fd vihy U;k;ky; us og fucaZf/kr dj fn;k && vihy U;k;ky; }kjk vfHkfu/kkZfjr fd;k x;k gS fd vk- 41 fu- 27 ds vèkhu çLrqr fd, x, nLrkost fopkj.k ds nkSjku ;kph@oknh dks miyC/k ugha Fks && ;fn ;kph@oknh dks iwoksZä nLrkost okni= esa lfEefyr ugha djus fn;k tkrk rks vk- 41 fu- 27 ds v/khu vkns'k fujFkZd gks tk,xk && vk- 6 fu- 17 ds v/khu vkosnu eatwjA 1990 ts,yts 7 voyafcrA ¼iSjk 9 ls 12
Civil P. C., 1908 -- O. 6 R. 17 and O. 41 R. 27 -- amendment in plaint -- suit for injunction dismissed after recording evidence -- appellate Court allowed application under O. 41 R. 27 for placing additional documents on record and remanded matter for deciding matter on additional issues -- amendment in plaint sought in respect of those documents -- trial Court rejected application on ground that application for amendment has been filed after undue delay -- held -- plaintiff has not sought amendment in relief clause thus it cannot be said that amendment would change nature of suit -- after remand, jurisdiction of lower Court depends upon terms of order of remand -- appellate Court directed trial Court to frame additional issues, if any, and to decide the same in accordance with law -- thus, merely because appellate Court has not specifically directed trial Court to entertain application for amendment, it cannot be inferred that appellate Court restricted the same -- it has been held by appellate Court that documents filed under O. 41 R. 27 were not available with petitioner/plaintiff during trial -- if petitioner/plaintiff is not allowed to incorporate aforesaid documents in body of plaint, order under O. 41 R. 27 would become otiose -- application under O. 6 R. 17 allowed. 1990 JLJ 7 relied on. [Paras 9 to 12

ORDER

1. This petition has been filed by the petitioner/plaintiff under Article 227 of the Constitution of India, against the order dated 17.1.2023, passed by the Civil Judge, Senior Division, Ujjain in RCSA No.28-A/2017 whereby, the application filed by the petitioner under Order 6 rule 17 of the C.P.C., 1908 for amendment in the plaint, has been rejected.

2. In brief, the facts of the case are that the aforesaid suit was filed on 15.7.2017, by the plaintiff for injunction only. The suit was contested by the respondents/defendants, and after the evidence was recorded, the learned Judge of the trial Court has passed the judgment dated 18.7.2019, and dismissed the suit. Against the aforesaid dismissal, the plaintiff preferred an appeal before the District Appellate Court along with an application under Order 41 rule 27 of the C.P.C. for placing on record the additional documents. The aforesaid application was allowed by the District Appellate Court vide its order dated 23.3.2021, and remanded the matter back to the trial Court holding that certain issues have not been framed by the trial Court which ought to have been framed, and thus, directing the trial Court to decide the matter on further additional four issues, and it was also directed that if the trial Court so requires, other issues may also be framed and the matter may be decided in accordance with law. When the matter went back to the trial Court, the plaintiff filed an application under Order 6 rule 17 of the C.P.C. seeking amendment of the plaint in respect of the documents, which were filed by him in the application under Order 41 rule 27 of the C.P.C., which was already allowed by the District Appellate Court. However, the aforesaid application has been rejected by the learned Judge of trial Court by the impugned order dated 17.1.2023, holding that if the aforesaid application is allowed it would change the nature of the suit, and also on the ground that even though the appellate Court has allowed the application filed under Or.41 r.27 of CPC, but after the remand, the application for amendment has to be decided on the general rules of amendment applications, and since the plaintiff had the knowledge of the aforesaid documents, he could have carried out the said amendment earlier also, and in such circumstances, it was held that the application being filed after undue delay, cannot be allowed, as the defendants are likely to be prejudiced by the aforesaid amendments.

3. Shri Harish Chandra Tripathi, learned counsel for the petitioner has submitted that the aforesaid documents regarding which the petitioner's application was already allowed by the learned District appellate Court under Order 41 rule 27 of the CPC, were required to be pleaded in the plaint itself, otherwise, the application which has been allowed by the Ditrict Appellate Court would not have any meaning at all. It is submitted that the learned Judge of trial Court has erred in not taking into account the fact that the District Appellate Court has remanded the matter back with a direction that certain issues may be framed, and certain additional issues may also be framed as the Civil Court finds expedient, and the matter was directed to be decided in accordance with law. In such circumstances, it is submitted that the application should have been allowed and should not have been rejected.

4. Learned counsel for the respondent, on the other hand, has opposed the prayer and it is submitted that no case for interference is made out as the learned Judge of the trial Court has rightly rejected the application on the principles enshrined under Order 6 rule 17 of CPC and if the amendment is allowed to be carried out, it would cause serious prejudice to the respondent, and also would change the nature of the suit. Thus, it is submitted that the petition be dismissed.

5. Counsel for the respondent has relied on the decision rendered by this Court in the case of Rajaram v. Vithabai and others reported as 1990

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