IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE SUBODH ABHYANKAR rd ON THE 3 OF JULY, 2023 MISC. PETITION No. 55 of 2023 BETWEEN:-

BHANWARBAI W/O KACHRRULAL BALAI, AGED ABOUT 67 YEARS, OCCUPATION:

1.

AGRICUTLURE GRAM DHATRAVDA, TEH. AND DISTT. UJJAIN (MADHYA PRADESH)

KACHRULAL S/O LAXMANJI BALAI, AGED ABOUT 72 YEARS, OCCUPATION: AGRICUTLURE

2.

GRAM DHATRAVDA, TEHSIL AND DISTRICT UJJAIN (MADHYA PRADESH)

.....PETITIONERS (SHRI A.S. GARG, SENIOR ADVOCATE WITH SHRI JITENDRA SHUKLA, ADVOCATE FOR THE PETITIONER)

AND LEELABAI W/O LATE RAMCHANDRA ANJANA, AGED ABOUT 72 YEARS, OCCUPATION:

1.

AGRICULTURE GRAM JAVASIYA KUMAR, TEH.

AND DISTT. UJJAIN (MADHYA PRADESH)

ISHWAR S/O LATE RAMCHANDRA ANJANA, AGED ABOUT 38 YEARS, OCCUPATION:

2. AGRICULTURE GRAM JAVASIYA KUMAR, TEHSIL AND DISTRICT UJJAIN (MADHYA PRADESH)

3. MAYABAI W/O KAMAL, AGED ABOUT 30 YEARS, OCCUPATION: AGRICULTURE GRAM DARIYAKHEDI, TEHSIL AND DISTRICT UJJAIN (MADHYA PRADESH)

THE STATE OF M.P. THROUGH COLLECTOR

4.

INDORE (MADHYA PRADESH)

.....RESPONDENTS (SHRI VAIBHAV BHAGWAT, GOVT. ADVOCATE FOR THE RESPONDENT NO.4/STATE)

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

O R D E R

1. None for the respondents No. 1 to 3 despite service of notice, and on the last date of hearing also this Court had granted one last opportunity to the respondents to address this Court but today also none has appeared.

Hence, the matter is heard finally.

2. This petition has been filed under Article 227 of the Constitution of India by the petitioner/defendant against the order dated 21/12/2022, passed in Case No.RCSA/37-A/19 by XI Civil Judge Class-II, Ujjain, M.P. whereby the application filed by the respondents no.1 to3/plaintiffs under Order 6 Rule 17 of the CPC for amendment in relief clause has been allowed.

3. In brief, the facts of the case are that a suit titled as, “for declaration and possession” has been filed by the plaintiffs against the defendant in which the written statement has already been filed. The defendant also filed an application under Section 34 of the Specific Relief Act on 21.10.2021, contending that the plaintiff has not sought any relief of possession despite the fact that the defendants are in possession of the property, hence, under Section 34 of the Specific Relief Act, the suit is not maintainable. After the aforesaid application was filed by the defendant, an application under Order 6 Rule 17 of the CPC on 29.07.2022 wherein the plaintiffs have also sought the relief of possession to be added in the plaint. 4. Shri Ashok Garg, learned sr. counsel for the petitioner has submitted that the aforesaid relief has been sought subsequently by the plaintiffs which cannot be allowed as it was clearly barred by limitation and the valuable right of the defendant has been violated. Thus, it is submitted that the impugned order is liable to be set aside.

5. In support of his submission Shri Garg has also relied upon the decision rendered by the Supreme Court in the case of Radhika Devi v.

Bajrangi Singh reported as Note No.130, M.P. Weekly Notes 1997(1)

Heard the learned counsel for the petitioner and perused the record.

6. So far as the scope of an amendment application is concerned, in the case of Radhika Devi (supra), the Supreme Court has held as under:-

“5. We find no force in the contention of the appellant. No doubt, the amendment of the plaint is normally granted and only in exceptional cases where the accrued rights are taken away by amendment of the pleading, the Court would refuse the amendment. This Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala (SCR at p. 582) held thus:

“It is, no doubt, true that, save in exceptional cases, leave to amend under Order 6, Rule 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of