IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL ON THE 9^th OF JULY, 2022 MISC. PETITION No. 165 of 2018 Between:-

1. PIYUSH KUAMR RATHI S/O KAMAL KISHORE RATHI , AGED ABOUT 35 YEARS, OCCUPATION:

NIL RADHA VALLABH WARD GADARWAR DISTT. NARSINGHPUR (MADHYA PRADESH)

2. SMT. RADHIKA RATHI W/O PIYUSH KUMAR RATHI , AGED ABOUT 32 YEARS, OCCUPATION: NIL R/O RADHA VALLABH WARD, GADARWARA (MADHYA PRADESH)

.....PETITIONER (BY SHRI PRATYUSH TRIPATHI, ADVOCATE)

AND

1. DR YOGESH KUMAR S/O SANTOSH KUAMR KOURAV , AGED ABOUT 37 YEARS, NEAR NEW GALLA MANDI TEH. GADARWARA DISTT.

NARSINGHPUR (MADHYA PRADESH)

2. STATE OF MADHYA PRADESH THR.

COLLECTOR DISTT-NARSINGHPUR (MADHYA PRADESH)

.....RESPONDENTS (SHRI SHYAM YADAV, ADVOCATE FOR RESPONDENT NO. 1) (Ms. SUPRIYA SINGH, ADVOCATE FOR RESPONDENT NO. 2)

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

ORDER

This Miscellaneous petition is filed being aggrieved of order dated st Signature Not Verified 28/11/2017 passed by the learned 1 Civil Judge Class-II, Gadarwara, District SAN Narsinghpur allowing an application under Order 6 Rule 17 C.P.C. filed by the plaintiff in view of the documents which were filed by the defendants along with an application under Order 8 Rule 1(3) C.P.C. and Order 26 Rule 9 C.P.C.

Learned counsel for the petitioners submits that a plaint was filed in regard to land contained in survey no. 395/8, 395/10 measuring 0.810 hectares. The plaintiff has no connection with land contained in survey no. 395/1, 395/2 in regard to which amendment was proposed and was allowed by the learned trial court.

It is submitted that this amendment is allowed after framing of the issues and that is commencement to the trial, therefore, bad in law as it violates the substantive provision contained in the proviso below Order 6 Rule 17 C.P.C.

Learned counsel for respondent no. 1 in his turn submits that defendants had filed their written statement respectively on 16/09/2014 and 29/01/2016. They never brought any document on record along with their written statement. Documents were introduced vide application under Order 8 Rule 1(3) belatedly to bring on record documents dated 29/09/2007 and 26/05/2008.

They also moved an application under Order 26 Rule 9 for appointment of Commissioner for demarcation of their land. When this fact came to the knowledge of the plaintiff that vide sale deed dated 29/09/2007 and 26/05/2008, certain portion was purchased by the defendant no. 2 from defendant no. 1 and from Shridev Narsingh Mandir Sarvarahkar Deep Chand Bairagi, then with a view to secure common patch admeasuring 293 square feet, it was necessary to make amendment in the plaint, else issues could not have been framed in this regard. Even Commissioner could not have given opinion for want of adequate pleadings.

Signature Not Verified SAN It is submitted that the requirement of due deligence envisaged in the proviso below Order 6 Rule 17 is fulfilled and, therefore, there is no error in allowing the application under Order 6 Rule 17,inasmuch as it is consequential to the application filed by the defendant under Order 8 Rule 1(3) C.P.C. and Order 26 Rule 9 C.P.C.

After hearing learned counsel for the parties and going through the record, firstly, petitioner has not enclosed a copy of the application under Order 6 Rule 17 C.P.C. or its reply which is a subject matter of adjudication before this court. Prima facie, it appears from the pleadings that when documents were filed by the defendants in regard to earlier sale deeds of the year 2007 and 2008, then consequential amendment has been sought.

It is a matter of evidence whether the amendment sought can be proved or not by the plaintiff but as the requirement of due diligence is fulfilled, I do not find any error apparent in the impugned order calling for any interference.

Accordingly, the petition fails and is dismissed.

(VIVEK AGARWAL)

JUDGE vy Signature Not Verified