##PAGE1##

1 MP-5484-2024

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE VIVEK JAIN

th

ON THE 5 OF FEBRUARY, 2026

MISC. PETITION No. 5484 of 2024

SHARIFUDDIN KHAN

Versus

RAHEES UDDIN AND OTHERS

Appearance:

Shri Piyush Gupta - Advocate for the petitioner.

Shri Ambuj Jain Advocate for the respondent No.1.

ORDER

The present petition has been filed challenging the order passed by the

trial Court dated 03-05-2024 whereby the trial Court has allowed the

application for amendment in the plaint to the extent of permitting the

plaintiff to insert the relief of recovery of possession in the original plaint

and permitting the pleadings to be inserted in the plaint that during pendency

of the suit, the plaintiff has been dispossessed by the defendant.

2. The aforesaid order is challenged on the ground that initially the

suit was filed only for declaration and permanent injunction and a

counterclaim was filed by the defendant. The original suit was dismissed in

terms of Order 9 Rule 8 CPC on 15.3.2018 while the counterclaim continued

to proceed before the trial Court and the counterclaim was decreed on 17-09-

2018 holding that the defendant is in actual possession of the suit land but his

title was not proved on the suit land. Therefore, the Court granted decree

Signature Not Verified

Signed by: NAVEEN KUMAR

SARATHE

Signing time: 06-02-2026

14:05:22

2 MP-5484-2024

of permanent injunction against dispossession without following due process

of law, in favour of the defendant vide judgement and decree dated 17-09-

2018.

3. In parallel proceedings, the application of the plaintiff under Order

9 Rule 9 CPC continued and the trial Court on 3-2-2020 allowed the said

application and the suit was brought back to life. Before the suit had been

rejected in terms of Order 9 Rule 8 CPC on 15.3.2018, the plaintiff

had already filed an application on 20-12-2017 for the questioned

amendment which was decided by the trial Court initially vide order dated 8-

2-2018 and which was put to challenge in MP No. 2757 of 2020, which was

decided after restoration of the suit and this Court directed the trial Court

to reconsider the application looking to the position that when the application

was filed, the trial had not commenced.

4. After the said order was passed by this Court on 11-09-2023,

then the trial Court has now allowed the application on 3-5-2024.

5. The said order is criticized for the petitioner on the ground that

there is already a finding of the trial Court in counter claim that the plaintiff

is not in possession and the plaintiff was never in possession and therefore,

the relief of possession may be hit by limitation and also that it changes the

nature of the suit.

6 . Upon considering the aforesaid assertion, it is seen that the

amendment application was filed in the year 2017 which has been decided in

the year 2024 and it was filed before commencement of trial. The suit is of

the year 2014. The plaintiff submits that he has been dispossessed from the

Signature Not Verified

Signed by: NAVEEN KUMAR

SARATHE

Signing time: 06-02-2026

14:05:22

3 MP-5484-2024

suit land during pendency of the suit and if the plaintiff submits that he is not

in possession, then it becomes imperative for the plaintiff to sue for

possession by seeking consequential relief.

7 . Therefore, the amendment having been filed before starting

of evidence on the assertion that it is being filed on account of subsequent

events, it cannot be said that the trial Court has exercised a jurisdiction which

was not vested in it. The order of the trial Court is found to be valid and as

per law.

8. So far as the assertion of the petitioner that the amendment is

barred by time, it would be for the defendant to raise the objection in the

consequential amendment and the said objection of the petitioner-defendant

would still remain open to be considered by the trial court in accordance with

law.

9. With the aforesaid observation, the petition is dismissed.

(VIVEK JAIN)

JUDGE

nks

Signature Not Verified

Signed by: NAVEEN KUMAR

SARA