Indrabhan Vs Maanwati

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT

JABALPUR
 

SINGLE BENCH: JUSTICE VIJAY KUMAR SHUKLA Writ Petition No.  18263 of 2016

Indrabhan & Others

VERSUS Maanwati & Others

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Shri Rajendra Kumar Gupta, learned counsel for the petitioner.

Smt.  D.K.Bohrey, learned Government Advocate for the respondent/State.

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O R D E R

(02.01.2017)

Heard on admission.

This  is a petition filed  under article 227  of the Constitution of India challenging the legality and validity of the order dated 29.09.2016 passed by  the Second Civil  Judge Class-II Churhat  District Sidhi, whereby the application filed  by the petitioner under Order 6 Rule  17 of the Code of  Civil  Procedure (hereinafter in  short referred as (CPC€) has been rejected.

2.  The  question for  consideration is whether the order passed by the trial Court rejecting application for amendment so far challenge to sale deed dated  18.08.2005 suffers from any  perversity,  illegality or jurisdictional error. The  validity of  the order impugned has to be examined on the anvil of facts and law  relating to the consideration of application for  amendment under Order 6 Rule  17  of the CPC.  It  is apposite to refer the amended provisions of Order 6 Rule  17 of the CPC

which enables the parties to  make amendment in  the plaint which

reads as under:

Order  6 Rule  17-  Amendment of pleadings: The  Court may  at any  stage of the proceedings allow either party to alter or amend his  pleadings in such manner and on such terms as may  be  just, and all  such amendments shall be made as may  be  necessary for  the purpose of determining the real questions in controversy between the parties; Provided that no  application for  amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of the diligence, the party  could not   have raised the  matter  before the commencement of  trail.

3.  The  above provisions deals with the amendment of pleadings. The provision inserted by Amendment Act 46  of 1999, was  deleted, which has again been restored by  Amendment Act  22  of 2002 (as  quoted above) but with an added proviso to prevent application for amendment being allowed after trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not  have raised the matter before the commencement of the trial. The  proviso to same extent, curtails absolute discretion to  allow amendment at any  stage. Now  if the application is filed  after commencement of the trial, the party seeking amendment in the pleadings must show that inspite of due diligence such amendment could not  have been sought earlier. Further the provisions indicate that the basic percepts for allowing the application for amendment of pleadings are that such amendment shall be  necessary for  the purpose of  determining the real question of controversy between the parties. The  party cannot be  allowed to set up new case under the guise of amendment by-passing the provisions of limitation, delay and other factors.

4. The  trial Court has taken into  consideration all the relevant facts for consideration of application for amendment filed  by the plaintiff.

5. The  petitioner filed  a suit for  declaration and permanent injunction and also  challenging registered sale deed dated 05.12.2009 which was executed in  favour of  the defendant no.4 with the collusion of defendant nos. 10  and 11.  The  suit was  filed  in the year 2010. After a period of 5 years, the petitioner filed  an application for  amendment under Order 6 Rule  17 of the CPC in year 2015, whereby he  sought to challenge the sale deed dated 18.08.2005 alleged to be executed by the defendant no.4 in favour of the defendant no.12 The  Court below has rejected the said application on  the ground of delay and limitation as the petitioner sought an amendment to challenge the alleged sale deed dated 18.08.2005 in  year 2015 in  the present suit. The  Court has further recorded a finding that the petitioner was  well  aware of the sale deed executed in the year 2005 when he  filed  the present civil suit on 14.07.2010. From bare perusal of the plaint (Annexure P-2) also  it is evident that the petitioner has shown cause of  action arises on

05.12.2009 and 08.12.2009. The  Court has rejected amendment application so far  it related to clause 2-A and 2-D of the application for amendment. However, the application seeking amendment regarding valuation of the Court fee  and its payment was  allowed.

6. In the application for  amendment, the petitioner has not  stated any reason for  not  challenging the alleged sale deed dated 18.08.2005 in the plaint. He  has also  not  stated that what has prevented him  from challenging the said sale deed earlier.

7.  At this stage, I think to  condign to  survey authorities or  point of consideration of  application for  amendment where the proposed amendment is  barred by  limitation. In  the case of Voltas Ltd.  Vs. Rolta India Ltd.(2014) 4 SCC 516, the Apex  Court held as under in

Para 29 which is quoted as under:

Mr.  Nriman, learned Senior Counsel, has also  contended that the counterclaims filed  before the learned arbitrator is an elaboration of the amount stated in the notice and, in fact, it is an amendment of the claim of the respondent which deserved to be  dealt with by the learned arbitrator. In this context, we  may  refer with profit to  the ruling in K.Raheja Constructions Ltd.  V. Alliance Ministries wherein the plaintiff had filed  a suit for  permanent injunction and sought an amendment for  grant of  relief of  specific performance. The  said prayer was  rejected by the learned trial Court. A contention was  canvassed that the appellant had not  come forward with new plea and, in  fact, there were material allegations in  the plaint to  sustain the amendment of the plaint. The  Court observed that having allowed the period of seven years to elapse from the date of filing  the suit, and the period of limitation being three years under Article 54  of the Schedule to  the Limitation Act,  1963 any  amendment on  the grounds set out, would defeat the valuable right of  limitation accruing to  the respondent.

8.  The   said principle has  been  reiterated  in   South  Konkan Distilleries Vs.  Prabhakar Gajanan Naik (2008)  14  SCC 632 and Van Vibhag Karamchari Griha  Nirman Sahkari Sanstha Maryadit Vs. Ramesh Chander.

9. In Revajeetu Builders and  Developers Vs. Narayanaswamy and Sons (2009) 10  SCC 84  while laying down some basic principles for considering the amendment, the Court has stated that as a general rule that Court should decline amendment if a fresh suit on the amendment

claims would be barred by limitation on the date of application.

10. The  Apex  Court in  case of Union of  India Vs.  Pramod Gupta

(2005) 12  SCC 1. The  relevant para is quoted as under:

135. Delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings. The  High Court neither assigned sufficient or cogent reasons nor applied its mind as regards the relevant factors while allowing the said application for amendment. It has also not been taken into consideration that the application for amendment of pleadings might not have been maintainable in view of the statutory interdict contained in sub-section (2) of Section 25 of the Act, if the same was applicable.

11. In the light of the above discussion of facts and law,  I do not find any illegality or perversity in the order passed by the trial Court in disallowing the application for amendment. The  Court has rightly taken into consideration that there was no averment in the application that what has prevented the plaintiff to challenge the sale deed of year 2005 when the suit was filed in the year 2010. The trial Court has rightly held that challenge to the said sale deed of year 2005 in year 2015 by way of application for amendment is bared by the provisions of Limitation Act.

12.  The order passed by the trial Court does not suffer from any jurisdictional error or any infirmity warranting interference by this Court under Article 227  of the Constitution of India. The proposed amendment which has been rejected could not be said to be necessary for adjudication of real controversy of the present case. Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227  of the Constitution of India cannot be exercised to correct all errors of judgment of the Court within its limitation. It can be exercised whether the order is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice (see) Jai Singh and Others Vs.  M.C.D  and  Others (2010)  9  SCC  385 and  Shalini Shyam Setty Vs. Rajendra Shankar Patil (2010)  8 SCC 329.

13.  In the result the order rejecting the application Order 6 Rule  17 is upheld and the petition is dismissed.