KAMAL KUMAR JAIN Vs. VIRENDRA KUMAR JAIN TADAIYA

JUDGEMENT

(1.) This writ petition by defendant under Article 227 of the Constitution of India is directed against the order dated 28/09/2015 in civil suit No.20A/2015 by the trial Court. The amendment application under Order VI Rule 17 CPC filed by plaintiff has been allowed.

(2.) Facts relevant and necessary for disposal of this writ petition are to the effect that a suit for eviction for bona fide need and arrears of rent under section 12(1) of the Madhya Pradesh Accommodation Control Act,1961 (hereinafter referred to as the Act of 1961) is pending consideration. After closure of evidence, plaintiff has filed the aforesaid application on the premise that the amendments proposed are with reference to the documents already exhibited during the course of cross - examination of the defendant. As such, no new facts are brought in and further neither changing the nature of the suit nor the same could be said to be prejudicial to the defendant. Defendant contested the application on the premise that the amendments sought are belated. No explanation is offered as to why such amendments were not incorporated in the suit or before commencement of the trial. Hence, for want of explanation, the same cannot be allowed in view of proviso to Order VI Rule 17 CPC. However, trial Court relying upon the order of this Court in the case of Pushpa Arora Vs. Anita Arora and others, [2012(1) MPLJ 710] has allowed the amendments though imposed cost with justification that the amendments sought are with reference to the documents already exhibited and confronted to defendant during the course of cross -examination. As such, no new facts are sought to be incorporated to change the nature of suit. In absence of any prejudice to the defendant, the amendment application was allowed.

(3.) Challenging the aforesaid order, learned counsel for the defendant/petitioner contends that Hon'ble Supreme Court and this Court in number of cases held that if amendment sought to be incorporated after commencement of trial, the requirement of proviso to Order VI Rule 16 CPC must be fulfilled to the satisfaction of the trial Court, i.e., despite due diligence, the amendments could not have been brought on record before commencement of the trial, otherwise such amendments are barred by proviso to Order VI Rule 17 CPC. Counsel refers to judgment of Hon'ble Supreme Court reported in 2009(3) MPLJ 122 (SC) VidyaBai and others vs. Padmalatha and another & this Court in 2014(2) MPLJ 464 Pratap and others Vs. Ganeshram and others, W.P.No.3342/2015 decided on 16/06/2015 Kushalpal Singh Jadon Vs. Dwarika Prasad Singhal and another and W.P.No.2191/2013 decided on 22/07/2014 Manoj Jain Vs. Smt. Suman Goyal to bolster his submission that the impugned order suffers from patent illegality and jurisdictional error. Hence, the same cannot be sustained in the eye of law.