The Patna High Court, while dismissing a petition filed by the petitioner for quashing the order dated 19.05.2017 passed by the learned Sub Judge, whereby the application filed by the plaintiffs/respondents under Order VI, Rule 17 of the Code of Civil Procedure was allowed, held that the claim of the petitioner that the amendment would change the nature of the suit, is not sustainable as it is a suit for partition and even after change of the area, the suit will remain a suit for partition.
Brief Facts:
The plaintiffs/respondents had filed a suit for partition of their share and also to appoint a Pleader Commissioner. At the same time, the plaintiffs also sought a direction to allow the plaintiffs to avail the right under Section 4 of the Partition Act with direction to the defendant 2nd party to execute sale deed of conveyance in respect of the property to the extent of the share of his vendor, defendant no. 1. After the appearance of both sides the evidence was closed and argument has also been concluded. Thereafter, an amendment petition was filed by the plaintiffs on 15.05.2017. A rejoinder to the amendment petition was filed by the defendants. The said petition was allowed by the learned trial court which has been assailed in the instant petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the learned trial court erred while allowing the petition for amendment. The learned trial court did not take into account the fact that the petition had been filed at a much-belated stage when the evidence of the parties was closed and argument was already heard and the matter was to be finally decided. The learned trial court also did not take into consideration the fact that there was no explanation for filing an amendment petition at so belated stage.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that only a typographical error was sought to be corrected since in paragraph 3 of the plaint instead of 6 dhurs, 16 dhurs has been mentioned whereas in the Schedule of the plaint, only 6 dhurs was mentioned so there was contradiction between the pleading of Schedule of the plaint and the body of the plaint. This contradiction was sought to be removed by filing an amendment petition and learned trial court has rightly allowed the same.
Observations of the Court:
The Court noted that Order 6 Rule 17 of the CPC provides amendment in pleadings at any stage of the proceedings, if the same might be necessary for the purpose of determining the real questions in controversy between the parties unless the amendment sought is time-barred or amendment changes the nature of the suit and it causes serious prejudice to the other party.
The Court observed that the amendment sought to be introduced is with regard to correction in the area of the suit land. It is not that the boundaries of the suit property are being changed. Further, the claim of the petitioner that the amendment would change the nature of the suit is not sustainable as it is a suit for partition, and even after the change of the area, the suit will remain a suit for partition. Its nature would not change.
The decision of the Court:
The Patna High Court, dismissing the petition, held that there is no merit in the petition.
Case Title: Abdullah Khan v Meena Khatoon & Ors.
Coram: Hon’ble Justice Arun Kumar Jha
Case no.: CIVIL MISCELLANEOUS JURISDICTION No.1089 of 2017
Advocate for the Petitioner: Mr. Abu Haidar
Advocate for the Respondents: Mr. Bimlesh Kumar Pandey
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