IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL nd ON THE 2 OF NOVEMBER, 2023 MISC. PETITION No. 5469 of 2023 BETWEEN:-

ANSHUMAN SHRIWASTAVA S/O BRIJESH PATEL SHRIWASTAVA, AGED ABOUT 35 YEARS, OCCUPATION: PROFESSOR R/O IN FRONT RABUDA BUILDING, KOTHI MARKET HOSHANGABAD TEHSIL AND DISTRICT HOSHANGABAD (MADHYA PRADESH)

.....PETITIONER (BY MS. SMITA VERMA - ADVOCATE)

AND RAJESH JAIN S/O SHRI JAINPAL JAIN, AGED ABOUT 48 YEARS, R/O DIRECTOR TERMINAL MARKETING MAIN ROAD HOSHANGABAD TEHSIL AND DISTRICT HOSHANGABAD (MADHYA PRADESH)

.....RESPONDENTS (NONE)

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

ORDER

This Miscellaneous Petition is filed by the defendant being aggrieved of order dated 14.08.2023, passed by learned First Civil Judge (Senior Division) to the Court of First Additional Judge, District Narmadapuram, in RCS-6B/2020, whereby, an application under Order 6 Rule 17 of CPC, seeking to clarify the pleadings already taken in written statement, has been rejected.

2. Learned counsel for the petitioner submits that rejection of the application is arbitrary and illegal.

Signature Not Verified Signed by: ASHWANI

3. Learned trial Court has failed to observe that without there being clarification of the pleadings, defendant will not be able to cross-examine the plaintiff.

4. Reliance is placed on the judgment of Supreme Court in Life Insurance Corporation of India Vs. Sanjeev Guilders Private Limited and another [2022 AIR (SC) 4256], so also on the judgment of Supreme Court in Usha Balashaheb Swami and others Vs. Kiran Appaso Swami and others [(2007) 5 SCC 602], Punjab National Bank Vs. Indian Bank [(2003) 6 SCC 79] as well as in case of Rajesh Kumar Aggarwal and others Vs. K.K. Modi and others [(2006) 4 SCC 385] and in case of Mohinder Kumar Mehra Vs. Roop Rani Mehra and others [(2018) 2 SCC 132] and Coordinate Bench of this Court in Manohar Singh Vs. Damini Mahadik [2018 (1) MPWN 299], to suggest that an application to amend the written statement should be allowed liberally.

5. After hearing learned counsel for the petitioner and going through the record, learned trial Court has noted that defendant/petitioner relying on certain bills proposes to add paragraphs 22-A, 22-B, 22-C & 22-D in regard to which petitioner/defendant had already made averments in para 24 of the written statement.

6. As per Order 6 Rule 2 of CPC, pleadings are in regard to the facts and not in regard to the evidence. It is observed that the proposed amendment is a matter of evidence.

7. Taking into consideration provisions contained in Order 6 Rule 9 of CPC, it is noted that pleadings are already available in para 24 of the written statement and recording a fact that amendment was sought with a view to delay the proceedings, rejected the application.

Signature Not Verified Signed by: ASHWANI

8. The spirit of the judgments is that consequential amendment should be liberally allowed. Another dimension of the aforesaid judgments is that no injustice should be caused to the parties for want of amendment.

9. However, it is also true as held by Supreme Court in Rajkumar Bhatia Vs. Subhash Chandra Bhatia [(2018) 2 SCC 87], in exercise of its jurisdiction under Article 227 of the Constitution of India, the High Court does not act as an appellate Court or Tribunal and it is not open to it to review or reassess the evidence upon which the inferior Court or Tribunal has passed the order.

10. After going through the record, pleadings are already available in regard to the bills in relation to which amendment is proposed. This Court in agreement with the learned trial Judge that it is a matter of evidence. Defendant will be free to cross-examine the plaintiff on the basis of those documents which are already on record. Pleadings are always in regard to facts and not in regard to evidence.

11. Taking all these facts and legal position into consideration, there is no error apparent on the face of record in the impugn