Case: SADHANA HAJELA AND OTHERS Vs. ULAS GUPTA

In RE : SLP(C) No. 38329/2012 1. Leave granted. 2. This appeal is directed against the judgment and order of the Madhya Pradesh High Court, Bench at Gwalior in First Appeal No 295/2005. The First Appeal arises in the following circumstances : 3. The respondents herein, i.e, Tilak Pradhan (now deceased thr. Lrs.) & Ors. filed a suit against the appellants herein who are the defendants. The suit was for declaration and injunction in respect of the suit land which according to the appellants was in their possession in part performance of the contract. It is significant that during the pendency of the suit, the land was transferred to two other people who may be referred to as Defendant No. 2A and Defendant No. 2B. These two are the original defendants who are not contesting the matter. 4. It is also significant that an amendment application was made to implead Defendant Nos. 2A and 2B and for recovery of possession from Defendant No. 2A only and not from Defendant No. 2B This was later corrected in a subsequent amendment application to include the relief against Defendant No. 2B also. 5. The Trial Court dismissed the suit. It found that the defendants, i.e., the appellants herein and the transferees in title were in possession. Against this dismissal, the respondents herein preferred a first appeal before the High Court. 6. The High Court took a very unusual course. In paragraph 45 of the impugned judgment, the High Court observed that the Trial Court had committed an error in rejecting the application of the plaintiffs filed under order VI Rule 17 of CPC and allowed the same even though no revision had been preferred against the order of the Trial Court rejecting the application for amendment. Secondly, on the basis of such application being allowed, which itself is highly irregular, the High Court without giving any opportunity to the defendants to carry out consequential amendments or considering the need for further additional evidence on the plaintiffs part, held that defendants were not in possession on the date of the suit. The High Court also directed that the defendants should return possession to the plaintiffs. 7. We find that the High Court has committed a serious error in reversing the finding of possession given by the Trial Court in favour of the appellants after allowing an application for amendment which was not before it and without giving an opportunity to the other side. It was wholly impermissible for the High Court to reverse the finding of possession inter alia on the basis of facts pleaded in the subsequent amendment application which are not incorporated or brought on record.

Decision:
1[ds]7. We find that the High Court has committed a serious error in reversing the finding of possession given by the Trial Court in favour of the appellants after allowing an application for amendment which was not before it and without giving an opportunity to the other side. It was wholly impermissible for the High Court to reverse the finding of possession inter alia on the basis of facts pleaded in the subsequent amendment application which are not incorporated or brought on record.12. We are not inclined to go into the question whether the High court in the first place ought to have entertained an application under Section 340, Cr.P.C, the matter having reached this Court. Be as it may, we find that the incorporation of the alphabet B denoting Defendant 2B may not amount to be an offence under Section 193, IPC. The act may have been mistakenly performed in the first place because the fact that the defendant 2B had also purchased the property was known to both the sides and parties were alive to this as Defendant Nos. 2A and 2B had already been impleaded.