IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PRANAY VERMA ON THE 10^th OF APRIL, 2024 MISC. PETITION No. 1053 of 2024 BETWEEN:-

JITENDRA S/O NARENDRA BHATI, AGED ABOUT 38 YEARS, OCCUPATION: UNEMPLOYED R/O:

RAMTEKARI MANDSAUR (MADHYA PRADESH)

.....PETITIONER (BY SHRI HARISH JOSHI - ADVOCATE )

AND

1. HITENDRA S/O NARENDRA BHATI, AGED ABOUT 46 YEARS, R/O: 9/5, RAMTEKARI MANDSAUR, (MADHYA PRADESH)

2. RAJENDRA RATHOR THR LRS. SMT.

NALINI W/O LATE RAJENDRA KUMAR RATHOR, AGED ABOUT 58 YEARS, OCCUPATION: HOUSEWIFE R/O: SARVODAY VIHAR MANGALAM COLONY QUARTER NO. E-1 MODAK TEHSIL RAMGANJ MANDI DIST KOTA (RAJASTHAN) PRESENT R/O: THROUGH USHA RATHORE 72 73 AGRASEN NAGAR MANDSAUR (MADHYA PRADESH)

3. RAJENDRA RATHOR THR LRS. MOHIT S/O LATE RAJENDRA KUMAR RATHOR, AGED ABOUT 30 YEARS, R/O: SARVODAY VIHAR MANGALAM COLONY QUARTER NO. E-1 MODAK TEHSIL RAMGANJ MANDI DIST KOTA (RAJASTHAN) PRESENT R/O THROUGH USHA RATHORE 72 73 AGRASEN NAGAR MANDSAUR (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI YASHPAL RATHORE – ADVOCATE FOR RESPONDENTS)

Signature Not Verified Signed by: SHILPA This petition coming on for admission this day, the court passed the following:

ORDER

With the consent of learned counsel for the parties, the matter is finally heard.

02. By this petitioner preferred under Article 227 of the Constitution of India, the petitioner/defendant No.1 has challenged the order dated 12.02.2024 passed in Civil Suit No.88-A/2018 by the Fourth Civil Judge, Senior Division, District Mandsaur, whereby his application under Order 6 Rule 17 of the CPC seeking leave of the Court to amend his written statement has been rejected.

03. The plaintiff / respondent No.1 has instituted an action before the trial Court for declaration of title and permanent injunction claiming title on the basis of a will dated 05.08.2011. The claim has been contested by defendant No.1 by filing his written statement on 21.09.2023. Thereafter, he filed an application under Order 6 Rule 17 of the CPC for amendment in the written statement to contend that he has also acquired title to the suit property by virtue of a will dated 09.06.2015 executed in his favour by Smt. Kamladevi and is in possession thereof and has also been mutated over the same by Nagar Palika Parishad, Mandsaur. The application was contested by the plaintiff and has been rejected by the trial Court by the impugned order by primarily observing that defendant No.1 has got himself mutated over the suit property in the Nagar Palika Parishad records despite passing of injunction order in that regard hence he has committed breach of the order.

04. The case is still at the stage of plaintiff’s evidence which is yet to commence. The written statement was filed by defendant No.1 on 21.09.2023 and the application seeking amendment was filed on Signature Not Verified Signed by: SHILPA

04.11.2023. The same was hence within a short period of time after filing of the written statement. By way of the amendment, defendant No.1 wants to plead acquisition of title to the suit property by virtue of a will. It is well settled that inconsistent and even conflicting pleadings can be taken by a party specially in his defence. In addition to the already existing pleadings, defendant No.1 wants to plead an alternate source of his title to the suit property which is certainly permissible.

05. In his application, defendant No.1 categorically stated that there are various proceedings pending between the parties in the Court due to which mistake occurred on his part in not pleading earlier the facts now sought to be pleaded. It is not disputed between the parties that 3-4 civil suits between them are pending hence the justification offered by defendant No.1 in not making the pleadings earlier is acceptable. His application has even otherwise not been rejected by the trial Court on the ground of delay.

06. The trial Court has observed that defendant No.1 has got himself mutated over the suit property in the records despite injunction or