IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE ANAND PATHAK ON THE 2^nd OF MAY, 2023 MISC. PETITION NO. 5717 of 2019 BETWEEN:-

BHAGWAN SINGH S/O SHRI RATIRAM, AGED ABOUT 63 YEARS, OCCUPATION: AGRICULTURIST R/O VILLAGE RAMNER TEHSIL BHANDER DISTRICT DATIA (MADHYA PRADESH)

…..PETITIONER (BY SHRI HARISH KUMAR DIXIT - ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH THROUGH COLLECTOR DISTRICT DATIA (MADHYA PRADESH)

2. GENERAL MANAGER, PROJECT IMPLEMENTATION UNIT DATIA M.P. RURAL ROAD DEVELOPMENT AUTHORITY, DATIA (MADHYA PRADESH)

3. R.K. TRIPATHI, CONTRACTOR MZ PHASE II KUTUMB APARTMENT BALWANT NAGAR, GWALIOR (MADHYA PRADESH)

…..RESPONDENTS (SHRI P.S. RAGHUVANSHI - GOVT. ADVOCATE, SHRI NAKUL KHEDKAR - ADVOCATE FOR RESPONDENT NO.2 AND SHRI PRASHANT SHRIVASTAVA - ADVOCATE FOR RESPONDENT NO.3)

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

ORDER

1. The present petition is preferred under Article 227 of the Constitution of India being crestfallen by the order dated 18-10- 2019 passed by the Civil Judge Class -I, Bhander District Datia whereby the application of petitioner as plaintiff under Order VI Rule 17 of CPC has been rejected.

2. It is the submission of learned counsel for the petitioner that the suit for permanent injunction was filed against the respondent/defendant on the ground that respondent No.2 intends to construct a road over the land of ownership of plaintiff and unless the acquisition is in accordance with law or suitable compensation is given, no construction can be carried out.

3. It appears from the pleadings that during pendency of the suit, road was constructed over the land of ownership of plaintiff and therefore, an application under Order VI Rule 17 of CPC was preferred to incorporate the pleadings in respect of factum of construction of road carried out over the land belongs to the plaintiff. Said amendment was in respect of event subsequent to filing of plaint and it does not alter the nature of controversy, therefore, rejection of application was arbitrary and illegal. He further refers the judgment of Apex Court in the case of Salem Advocate Bar Assn. Vs. Union of India, (2005) 6 SCC 344 to bring home the fact that there is no requirement of filing of application with affidavit, since after amendment of pleadings fresh affidavit has to be filed in support of the pleadings, so incorporated.

4. Learned counsel for the respondents vehemently opposed the submission and submitted that since due diligence has not been shown by the petitioner and it changes the nature of the suit, therefore, trial Court rightly rejected the application and thus prayed for dismissal of the petition.

5. Heard.

6. This is a case where petitioner as plaintiff is seeking amendment in the pleadings in the plaint filed seeking permanent injunction to the extent where defendant be injuncted not to construct the road over the land of ownership of the plaintiff without acquiring it or suitably compensating for the same. Since the application for temporary injunction under Order XXXIX Rule 1 and 2 of CPC was rejected by the trial Court, therefore, it appears that defendant No.2 laid road over the land allegedly of ownership of plaintiff, therefore, new facts situation arises to incorporate those facts which are subsequent in nature. Same does not alter the nature of litigation. Therefore, application deserves to be allowed so that plaintiff can lead appropriate evidence at appropriate stage. From the pleadings and contents of application it appears that trial Court erred in rejecting the application for amendment.

7. The judgment of Apex Court in the case of Salem Advocate Bar Assn. (supra) needs reiteration:

"4. Prior to insertion of the aforesaid provisions, there was no requirement of filing affidavit with the pleadings. These provisions now require the plaint to be accompanied by an affidavit as provided in Sec