The Patna High Court, while dismissing a petition filed under Article 227 of the Constitution of India, filed for setting aside the order dated 24.01.2018 passed by the learned Sub. Judge, whereby the petition dated filed by the plaintiff/respondent no. 1 under Order 6 Rule 17 of the Code of Civil Procedure, 1908 was allowed, held that though there appears to be no explanation for the delay on the point, the delay in all cases would not dis-entitle a party from moving amendment and getting the pleadings amended if it is necessary for doing full and complete justice between the parties.
Brief Facts:
The plaintiff/respondent no. 1 filed a partition suit bearing in the Court of learned Sub. Judge, seeking 1/7th share in Schedule-I of the plaint after the partition of the suit property and also for a direction to defendants, petitioners herein, to execute the sale deed in favor of the plaintiff/respondent no. 1 for the land of Schedule-2 along with house mentioned in Schedule-2 property of the plaint with an alternative prayer that if the defendants-2nd set/petitioners failed to execute the sale-deed, the same might be executed through the process of the Court. The plaintiff/respondent no. 1 filed a petition under Order 6 Rule 17 seeking amendment in the plaint. The learned trial court vide impugned order allowed the amendment.
Contentions of the Petitioner:
The Learned Counsel for the petitioner submitted that the order of the learned trial court is not sustainable and it has been passed in the most mechanical manner without appreciating the objections and contentions raised by the petitioners. The impugned order is illegal, arbitrary, and without jurisdiction; the same is liable to be set aside. He argued that the learned trial court failed to take into consideration the fact about the share of the plaintiff/respondent no. 1 to the extent of 1/7th in the suit property being decreed in a previous Suit.
Contentions of the Respondent:
The Learned Counsel for the respondent submitted that the issues regarding the pendency of an application under Section 11 of the Code or previous partition are not material for consideration of the amendment application because in the amendment application, the merit of the amendment sought could not be looked into and it is to be seen whether the amendments are necessary for adjudication of the real controversy between the parties.
Observations of the Court:
The Court noted that the objection is on the ground that the amendment was moved after much delay and the same was decided without deciding the application which has been filed under Section 11 of the Code.
The Court observed that the previous decree in the partition suit would not affect the claim of the plaintiff/respondent no.1 in a subsequent suit and the amendment on this count could not be assailed. On the issue of delay, the Court said that though there appears no explanation for the delay on the point, the delay in all cases would not dis-entitle a party from moving amendment and getting the pleadings amended if it is necessary for doing full and complete justice between the parties.
The decision of the Court:
The Patna High Court, dismissing the petition, held that the impugned order does not require interference by this Court except on the point of payment of cost to the petitioners.
Case Title: Ved Prakash & Ors. v Kedar Nath Chaudhary & Ors.
Coram: Hon’ble Justice Arun Kumar Jha
Case no.: CIVIL MISCELLANEOUS JURISDICTION No.722 of 2018
Advocate for the Petitioner: Mr. D. K. Sinha
Advocate for the Respondents: Mr. Y. C. Verma
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