IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL th ON THE 20 OF MAY, 2024 MISC. PETITION No. 7531 of 2023 BETWEEN:-

PRASHANT KUMAR YADAV S/O LATE SHRI KAILASH NARAYAN YADAV, AGED ABOUT 63 YEARS, R/O 10 HARSH NAGAR, TEHSIL AND DISTRICT KATNI (MADHYA PRADESH)

.....PETITIONER (BY SHRI AVINASH ZARGAR, ADVOCATE)

AND

1. TIRATH PRASAD TIWARI S/O SHRI TULSI PRASAD TIWARI, AGED ABOUT 60 YEARS, OCCUPATION: SELF EMPLOYED R/O AYUDOGIG NAGAR, PLOT NO. 93, KATNI, TEHSIL AND DISTRICT KATNI (MADHYA PRADESH)

2. RAJENDRA AGRAWAL S/O LATE SHRI RAMNIRANJAN AGRAWAL, AGED ABOUT 64 YEARS, R/O JALPA DEVI WARD KATNI TEHSIL AND DISTRICT KATNI (MADHYA PRADESH)

3. SMT. TARA SHUKLA W/O LATE SHRI MOHAN SHUKLA, AGED ABOUT 65 YEARS, R/O HOUSING BOARD COLONY KATNI TEHSIL AND DISTRICT KATNI (MADHYA PRADESH)

4. ADITYA SHUKLA S/O LATE SHRI SHUKLA, AGED ABOUT 36 YEARS, R/O HOUSING BOARD COLONY KATNI TEHSIL AND DISTRICT KATNI (MADHYA PRADESH)

5. STATE OF M.P. THROUGH DISTRICT PRESIDENT KATNI (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI ASHOK KUMAR JAIN, ADVOCATE FOR RESPONDENT 1)

(BY SHRI PRADEEP DWIVEDI, PANEL LAWYER FOR RESPONDENT-

Signature Not Verified Signed by: KUMARI PALLAVI STATE)

This petition coming on for admission, this day, the court passed the following:

ORDER

This miscellaneous petition has been preferred by the petitioner/plaintiff challenging the order dtd. 06.12.2023 passed by 6th Civil Judge Junior Division, Katni in RCS No.334A/2023 whereby plaintiff/petitioner's application under Order 6 Rule 17 CPC has been dismissed even prior to framing of issues i.e.

prior to commencement of trial.

2. Learned counsel for the petitioner/plaintiff submits that the suit for declaration of title and permanent injunction has been filed by plaintiff taking plea of ownership over 1/3 portion of the land in question and now by way of application under Order 6 Rule 17 CPC, the plaintiff wants to take plea to the effect that as the plaintiff is in possession of the land since after 28.09.1992, therefore, the rights of defendant 1, if any, have extinguished, which has wrongly been rejected by trial court holding the proposed plea to be inconsistent to the existing plea of ownership. Other pleas in respect of title over the land in question has also been taken to elaborate the plea of benami transaction, which has already been taken in the plaint. Learned counsel submits that at the stage of consideration of application under Order 6 Rule 17 CPC, merits and demerits of the proposed amendment cannot be seen and because the application was filed even prior to framing of issues, therefore, it should have been allowed.With these submissions, he prays for allowing this petition.

3. Learned counsel appearing for the respondent/defendant 1 submits that in fact by way of proposed amendment, the plaintiff wants to take plea of adverse possession, which is not permissible it being mutually/self destructive plea. He Signature Not Verified Signed by: KUMARI PALLAVI further submits that the plaintiff has no right over the land in question and the sale deed of the entire land is in the name of respondent/defendant 1-Tirath Prasad Tiwari. Originally also the plaintiff has taken false plea of benami transaction and now claiming himself to be in possession of the land, he is taking plea of adverse possession. With these submissions, he prays for dismissal of the miscellaneous petition.

4. Heard learned counsel for the parties and perused the record.

5. Undisputedly, the civil suit in question is at its preliminary stage and even the issues were not framed on the date of passing of the impugned order. It is well settled that pre trial amendment should generally be allowed and at the same time, it is also well settled that merits and demerits of the amendment cannot be seen at the stage of consideration of application under Order 6 Rule 17 CPC.

6. As such, especially looking to the stage of the suit, the application under Order 6 Rule 17 CPC dtd. 22.09.2023 fil