The Patna High Court, while allowing a petition filed under Article 227 of the Constitution of India for setting aside the order dated 15.10.2022 passed by learned Additional District Judge-whereby and whereunder the learned Appellate Court rejected the amendment petition filed by the petitioner, held that in a disputed question of fact like a wrong boundary and its correction, the court could not order for appointment of a Survey Knowing Pleader Commissioner as Commissioner could not be appointed to collect evidence on behalf of the parties.
Brief Facts:
The plaintiff filed a title suit seeking certain reliefs. The respondent was the defendant and is the brother of the plaintiff. The petitioner purchased a plot of land. On the said land, the petitioner constructed a pucca house of six rooms, however, during the municipal survey, the land was recorded in the name of the petitioner and respondent jointly. The petitioner claimed that the respondent wanted to grab the land of the petitioner. The petitioner requested the respondent several times to execute a deed of relinquishment and on his refusal, the petitioner filed the title suit. The learned Sub-Judge decreed the suit in favor of the plaintiff. Being aggrieved, the defendant filed a title Appeal. The petitioner came to know about the mistake of the typist resulting in the insertion of the wrong plot no. in the plaint and the petitioner filed an application to amend the plaint. The learned Additional District Judge rejected the amendment petition and the said order has been challenged before this Court.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the learned trial court erred in rejecting the prayer for amendment without considering the fact that the proposed amendment is formal in nature and would not change the nature of the suit and therefore, no prejudice was going to be caused to the other side. No new fact is being sought to be incorporated through the amendment petition.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that the petitioner had previously filed an amendment petition which was allowed and the petitioner has been sleeping over the matter. He argued that the proposed amendment was well within the knowledge of the petitioner since the time of filing of the suit and the petitioner has failed to disclose that in spite of due diligence, he could not bring the proposed amendment. Therefore, the petitioner is not entitled for the same.
Observations of the Court:
The Court noted that all amendments shall be allowed at any stage which might be necessary for the purpose of determining the real question in controversy between the parties.
The Court observed that the amendment sought to be brought about has been moved after much delay and there is a blend of explanation of inadvertence and mistake of the typist. However, considering the fact that the real controversy between the parties should be adjudicated and if for whatsoever reason, the correct Plot No. has not been mentioned in the original plaint, such amendment in correction of Plot No. could be allowed subject to heavy cost to compensate the respondent for all the trouble that he has been facing since the institution of the suit.
The decision of the Court:
The Patna High Court, allowing the petition, held that the order dated 15.10.2022 is set aside and the petition dated 22.02.2021 is allowed subject to payment of the cost of Rs.50,000/ to be paid to the respondent.
Case Title: Bhola Mandal v Arjun Mandal
Coram: Hon’ble Justice Arun Kumar Jha
Case no.: CIVIL MISCELLANEOUS JURISDICTION No.88 of 2023
Advocate for the Petitioner: Mr. Rajendra Narain
Advocate for the Respondents: Mr. Harish Chandra Patel
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