IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE ASHISH SHROTI th ON THE 5 OF MAY, 2025 MISC. APPEAL No. 5433 of 2023 OMPRAKASH PATHAK Versus SMT. RAMDULARI SHARMA AND OTHERS Appearance:

Shri Sameer Kumar Shrivastava - advocate for the appellant.

Shri Chandra Pratap Singh Kushwah- advocate for the respondents.

ORDER The appellant/defendant has filed this appeal under Order 43 Rule 1(u)

of Code of Civil Procedure challenging the judgment, dated 18.08.2023, passed by Principal District Judge, Shivpuri (M.P.) in Regular Civil Appeal No.28-A of 2023 whereby learned Appellate Court after allowing the application under Order 6 Rule 17 CPC, set aside the judgment and decree passed by Trial Court and has remanded the matter for afresh adjudication.

[2]. For convenience, the appellant is referred as 'defendant' while the respondents are referred as 'plaintiffs' as per their respective status in civil suit.

[3]. The plaintiff no.2 Ganesh Kumar Sharma and one Dakhobai purchased the property, which also includes the suit premises, from its earlier owner vide sale deed, dated 06.10.1998. Later on, Smt. Dakhobai sold her share in the property to plaintiff no.1 Ram Dulari Sharma vide sale deed Signature Not Verified Signed by: VIPIN KUMAR dated 26.02.1999. It is not in dispute that the defendant is in possession of part of the suit property at first floor. His status to occupy the premises is in dispute.

[4]. The plaintiffs filed the present suit seeking eviction of the tenant inter-alia alleging that the defendant is the tenant in the suit premises and has defaulted in payment of rent and further that the suit property is required bona-fide by the plaintiffs. The suit was filed under the provisions of M.P. Accommodation Control Act, 1961. The defendant filed his written statement and denied plaintiffs' title over the property. He also denied his relationship of landlord and tenant with the plaintiffs. The learned Trial Court vide judgment and decree dated 31.01.2023, dismissed the suit holding that the relationship of landlord and tenant is not established.

[5]. The plaintiffs, being aggrieved, filed the regular appeal under Section 96 CPC challenging the judgment and decree passed by the Trial Court. In the appeal, plaintiffs filed an application under Order 6 Rule 17 CPC seeking amendment in the plaint to the effect that in case the tenancy is not found proved, they are entitled to recover the possession of the suit property on the basis of their title. They also sought to amend the valuation of the suit for the relief of possession and for payment of court fee accordingly. Yet another application under Order 23 Rule 1 CPC was filed by the plaintiffs seeking to withdraw their claim for recovery of arrears of rent. The defendant opposed both the applications filed by the plaintiffs.

[6]. The learned Appellate Court vide impugned judgment allowed the application under Order 6 Rule 17 CPC and has permitted the plaintiffs to Signature Not Verified Signed by: VIPIN KUMAR amend the plaint claiming possession of suit property on the basis of their title also. Since, the matter was being remanded to the learned Trial Court, the other application under Order 23 Rule 1 CPC is not decided by the Appellate Court.

[7]. Challenging the impugned judgment, learned counsel for the defendant submitted that the Appellate Court seriously erred in law in allowing the application under Order 6 Rule 17 CPC inasmuch as it changes the entire nature of the suit. It is his submission that once the suit has been filed under the provisions of M.P. Accommodation Control Act, 1961, the plaintiffs cannot be allowed to seek relief of possession based upon their title. He further submitted that the remand directed by the learned Appellate Court is in excess of its jurisdiction under Order 41 Rule 23-A of CPC. The learned counsel also argued that the plaintiff cannot be allowed to raise alternate plea which are mutually destructive to each other. He also ar