IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE HIRDESH

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ON THE 23 OF FEBRUARY, 2026 MISC. APPEAL No. 2283 of 2020 MAHESH KUMAR SHRIVASTAVA AND OTHERS Versus RAMESH KUMAR AND OTHERS Appearance:

Shri N.K. Gupta- Senior Advocate assisted by Shri Shatru Daman Singh Bhadouriyia- Advocate for appellant- defendant No.1.

Shri Ashish Shrivastava- Advocate for respondents No. 1 to 3-

plaintiffs.

ORDER This miscellaneous appeal under Order 43 Rule 1(u) of the Code of Civil Procedure (CPC) has been filed by appellant/defendant No. 1 against the order dated 19th of May, 2020, passed by First Additional District Judge, Bhind (hereinafter referred to as the "First Appellate Court") in Regular Civil Appeal No.53 of 2017, whereby the First Appellate Court allowed an application filed by the plaintiffs under Order 6 Rule 17 of CPC and remanded the matter to the Trial Court (Additional Judge to the Court of First Civil Judge, Class-I, Bhind) for fresh adjudication, whereby the Trial Court, vide judgment and decree dated 31-07-2017 in Civil Suit No. 87-A of 2015, had dismissed the suit on the grounds that the plaintiffs were not in possession and the suit, as framed, was not maintainable.

2. Facts of the case giving rise to present appeal, as narrated therein, are that plaintiffs filed a suit for declaration of title and permanent injunction regarding a plot measuring 30x60 sq. ft. situated in Shastrinagar, B-Block, Bhind. It was pleaded that plaintiffs and defendants No. 1 and 2 are real brothers who each hold a 1/5th share in the land. The property originally belonged to one Baburam, who died unmarried and issue-less after executing a ''Will'' dated 09.01.2002 in favor of the parties. The plaintiffs alleged that defendants No.1 and 2 illegally mutated their names in the Municipal Council records and denied the plaintiffs' rights. In response, the defendants filed a written statement asserting that they had constructed a three-stored house on the site and had alienated the property to defendant No.3, who is in possession. The Trial Court dismissed the suit, holding that since the plaintiffs were not in possession and had failed to seek the relief of possession, the suit was barred by the proviso to Section 34 of Specific Relief Act. On appeal, the First Appellate Court allowed the plaintiffs' amendment application and remanded the case for retrial. Hence, this appeal.

3. Learned Senior Counsel appearing for the appellant submits that the First Appellate Court committed a jurisdictional error. It is contended that the Court confirmed the Trial Court's finding that the plaintiffs were not in possession, yet allowed the amendment application without considering the "due diligence" requirement under Order 6 Rule 17 of CPC. He submits that the facts regarding the construction were known to the plaintiffs since the inception of suit. It is further argued that remanding the matter without a specific finding that a retrial is necessary violates the provisions of Order 41 Rules 23 and 23-A of CPC. He has placed reliance on the decisions of this Court in the matters of Smt. Anita vs. Abdul Jalil and Others (M.A. No. 4810 of 2022) and Narayan Singh (D) through LRs vs. Aatam Singh (M.A. No.

9755 of 2024).

4. On the other hand, learned counsel for the respondents/plaintiffs supports the impugned order, arguing that amendments should be allowed liberally to avoid multiplicity of proceedings and to decide the real controversy. Reliance is placed on Yellapu Uma Maheswari vs. Budha Jagdheeswararao [2015 AIR (SCW) 6184], Pankaja vs. Yellappa [2004 AIR (SCW) 4522], Kishanlal vs. Gayaram [1991 Legal Eagle (MP) 415], Rajkumar Rajput vs. Anita [2023 Legal Eagle (MP) 463], and Asha Bai Jain vs. Jasvir Singh [2018 Legal Eagle (CHH) 664]. Hence, prayed for dismissal of this appeal.

5. Heard learned Counsel for the parties. Perused the impugned order passed by the first appellate Court as well as impugned judgment and decree passed by the trial Court.