Rafeeque Kha S/o Mehboob Kha vs State of M.P.

Petitioner has filed this petition being aggrieved by order dated 28.3.2012 passed by the Court of Third Additional Judge to First Additional Sessions Judge, Gwalior, in civil suit No.15- A/2011, whereby application filed by the respondents/defendants under Order 7 Rule 11 CPC in regard to payment of court fee has been accepted and plaintiff has been directed to pay ad valorem court fee on the valuation of chilies and vide the same order an application under order 6 Rule 17 CPC filed by the plaintiff for amendment has been rejected on the ground that admissions made by the plaintiff earlier cannot be permitted to be withdrawn in the light of the law laid down in the case of Usha Balashaheb Swami & ors. Vs. Kiran Appasao Swami & Ors. as reported in 2007(4) M.P.L.J. 311 and Heerabai and others Vs. Ramprasad & ors. as reported in 1998 (2) J.L.J. 89, wherein it has been provided that application for amendment can be accepted only when new facts are brought to the notice of a party seeking such amendment and the amendment cannot be allowed to withdraw the admissions made earlier. In this regard, law laid down in the case of Radha Bai (Smt.) Vs. Shankar Lal Kachhi as reported in I.L.R. (2015) MP 2352 is important which says that no amendment can be allowed which was apparently in the knowledge of the applicant on the date of filing of his pleadings.

Learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in the case of Mount Mary Enterprises Vs. Jivratna Medi Treat Pvt. Ltd. as reported in 2015(3) M.P.L.J. 494 (SC) wherein it has been held that amendment should normally be granted unless by virtue of amendment nature of suit is changed or some prejudice is caused to the defendant. In the present case, this aspect has not been taken into consideration.

In view of the aforesaid judgment, it is apparent that in fact the Court below was first required to consider the application under Order 6 Rule 17 CPC and thereafter should have considered the application under Order 7 Rule 11 CPC, but the Court below has taken a reverse order and without considering the proposed amendment, it allowed the application under Order 7 Rule 11 CPC which was not just under the facts and circumstances of the case in view of the law laid down by the Supreme Court.

Accordingly, petition is allowed. Impugned order is set aside. Court below is directed to first consider the application under Order 6 Rule 17 CPC and thereafter should consider the application under Order 7 Rule 11 CPC.