IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN

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ON THE 12 OF DECEMBER, 2025 MISC. PETITION No. 5836 of 2025 SMT.POONAM SHARMA AND OTHERS Versus DINESH KUMAR PANDEY AND OTHERS Appearance:

Shri Prakash Upadhyay - Senior Advocate with Ramnath Dwivedi -

Advocate for the petitioner.

Shri Sanjay Agrawal - Senior Advocate with Shri Udaynand Pandey -

Advocate for respondent No.1.

ORDER The present petition has been filed by the defendant challenging the order dated 23.08.2025 passed by the trial Court whereby the trial Court has allowed the application filed by the plaintiff for amendment in the plaint under Order 6 Rule

17 CPC.

2. It is vehemently contended by learned counsel for the petitioner that the trial Court ought not to have allowed the application for amendment in the plaint because it amounts to changing the case of the plaintiff. It is argued that initially the suit was filed for declaration of share as per memorandum of partition dated 31.03.2000. However, now the plaintiff by way of an application under Order 6 Rule 17 CPC has sought to insert the pleading of he being beneficiary of Will executed by his grandfather on 21.12.1977 and claiming title on the basis of Will also. It is vehemently argued that the aforesaid amendment amounts to changing the scope and nature of the suit.

3. It is further argued that by way of amendment some more properties are sought to be inserted in the properties involved in the suit. By placing reliance on judgement of the Hon’ble Apex Court in case of Basavaraj v. Indira, (2024) 3 SCC 705, it is argued that any amendment cannot be allowed after trial has commenced unless by way of due diligence party could not have raised the issue. It is argued that the suit was filed in the year 2022 and the knowledge of Will which is alleged to be dated 21.12.1977, was very much available with the plaintiff at the time of filing of the suit and this issue could have been raised by the plaintiff at the time of filing of the suit. However, in the application under Order 6 Rule 17 CPC the sole reason assigned is that by oversight this pleading was not taken in the plaint which is not a valid reason to seek amendment in the plaint after commencement of trial.

4. Per contra, it is argued by learned counsel for the respondent-plaintiff that though technically the trial might have commenced but actually the evidence of the plaintiff has not yet started and if at this stage the amendment is allowed, it would not prejudice the defendants at all. It is further argued by placing reliance on the judgment of the Hon’ble Apex court in LIC v. Sanjeev Builders (P) Ltd., (2022) 16 SCC 1 that amendments have to be liberally construed and also that in the present case the amendment does not change the nature of the suit and only an alternative plea is being inserted in the plaint which does not amount to withdrawal of any admission in favour of other party but only inserts an alternative pleading. It is argued that even otherwise, the plaintiff could have instituted another suit on the basis of Will and it would be appropriate that in this suit between members of the family, all the disputes are decided once and for all. On these assertions, it is prayed that the petition be dismissed.

5. Upon hearing the counsel for the rival parties and on perusal of the record, it is seen that initially the suit was filed by the plaintiff on the assertion that his share in the joint family property be declared as per memorandum of settlement dated 31.03.2000. However, during pendency of the suit and before the plaintiff evidence could actually commence, an application for amendment was filed bringing on record that there is a Will in favour of the plaintiff executed in the year 1977 by his grandfather and therefore, benefit of Will is also being sought in the suit.

6. In the considered opinion of this Court, by way of amendment no earlier pleading has been sought to be deleted so as to amount to withdrawal of