Devnarayan Sinha vs Tikaram Gajendra
2025 Latest Caselaw 1618 Chatt

Chattisgarh High Court

Devnarayan Sinha vs Tikaram Gajendra on 8 August, 2025

                                      1




                                                        2025:CGHC:39805


                                                                   NAFR

            HIGH COURT OF CHHATTISGARH AT BILASPUR

                           WP227 No. 773 of 2025
1 - Devnarayan Sinha S/o Late Lakhan Lal, Aged About 73 Years R/o
Village Arjuni Tahsil And District Dhamtari (C.G.)
                                                   ... Petitioner(s)

                                   versus

1 - Tikaram Gajendra S/o Late Lakhan Lal Gajendra, Resident And
Farmer Village Gadadih, Post Bhakhara, Tahsil Kurud, Presently At
Office Of Senior Agriculture Officer, Jagdalpur, District Bastar (C.G.)

2 - State Of Chhattisgarh Through The Collector, District Dhamtari (C.G.)

3 - Derhin Bai, D/o Late Lakhan Lal, W/o Shri Shyamlal Sinha, Aged
About 75 Years R/o Village Thanod, Tahsil And District Durg (C.G.)

4 - Kamla Bai D/o Late Lakhan Lal, W/o Shri Premlal Lahra, Aged About
71 Years R/o Village Bagdonri, Tahsil Charama, District Kanker (C.G.)
                                                     ... Respondent(s)

For Petitioner/Plaintiff : Mr.B.P. Sharma, Advocate along with Mr. Karunendra Narayan Singh, Advocate For State : Mr. Vedant Shadangi, Panel Lawyer

Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 08.08.2025

1. The petitioner has filed this petition seeking the following relief(s):-

"10.1 A writ and/or an order in the nature of writ of appropriate nature do issue calling the relevant records pertaining to case of the petitioner from the Court concerned for its kind perusal.

10.2 A writ and/or an order in the nature of writ of appropriate nature do issue quashing the order dated 18.7.2025 (Annexure P-1) passed in Civil Appeal No.21A/2024 by learned 2nd Additional Judge to the Court of learned District Judge Dhamtari District Dhamtari being perverse and not sustainable in law and in effect allow the applications rejected by the impugned order in the facts and circumstances of the case.

10.3 Cost of the proceedings.

10.4 Any other writs & directions that may be deemed fit and just in the facts & circumstances of case."

2. The facts of the present case are that the petitioner/plaintiff filed a

suit for declaration of title, partition and injunction in respect of the

lands situated in three different villages and also for entitlement of

compensation in respect of the land acquired in land acquisition

case No.11A/82, year 2015-16.

3. The defendants filed their written statement. Learned Trial Court

framed issues and Civil suit No.38A/2017 was dismissed by the

learned First Additional Judge to the learned Civil Judge, Class-II,

Dhamtari, vide judgment and decree dated 18.03.2024.

4. The petitioner herein preferred a regular appeal against the

judgment and decree dated 18.03.2024. In the pending appeal, the

petitioner moved an application under Order 41 Rule 27 and Order

6 Rule 17 of CPC.

5. In the application moved under Order 6 Rule 17 of the CPC, the

petitioner pleaded that during the pendency of the appeal, the

appellant got certain documents regarding the conferment of

Bhumiswami rights over properties situated at Village Gadadih,

and it was stated that in the suit for partition, all properties have to

be included. It is also pleaded that if the details of the entire

property are not given in the suit for partition, it would amount to a

waiver of right, and the second suit cannot be presented seeking

partition.

6. Respondent No.1/defendant No.1 filed a reply to the application

moved under Order 6 Rule 17 of CPC, wherein it is stated that the

parties to the lis entered into a compromise in Civil Suit

No.11A/1988 on 14.07.1988, and the properties mentioned in the

application for amendment have already been partitioned

according to the compromise decree. It is also stated that the

proposed amendment would change the nature of the suit.

7. Learned Appellate Court vide order dated 18.07.2025 held that the

proposed amendment would change the nature of the suit, and it

would bring the suit to its initial stage. It is also observed that the

application for amendment has been moved at a belated stage,

particularly before the Appellate Court. It is also stated that the

petitioner has not assigned reasons as to why such application

was not moved before the learned Trial Court.

8. Mr. Sharma, the learned counsel appearing for the petitioner,

would argue that the petitioner moved an application under Order

41 Rule 27 of CPC whereby certain documents describing details

of the ancestral properties, which are not part of the suit property,

were produced. He would further submit that the application under

Order 41 Rule 27 of CPC is still pending consideration before the

Appellate court. He would contend that the application under Order

6 Rule 17 of CPC was also moved, describing the nature of

documents filed under Order 41 Rule 27 of CPC. He would further

contend that the entire ancestral property has not been included in

the suit, and no separate suit can be filed for partition, and it would

be deemed that the parties have waived their rights with regard to

those properties if the entire property is not included. He would

also submit that the rejection of the application under Order 6 Rule

17 of CPC would amount to the rejection of the application under

Order 41 Rule 27 of CPC as the documents which have been

produced along with the application under Order 41 Rule 27 of

CPC, have been elaborated in the application filed under Order 41

Rule 27 of CPC. In support of his contentions, he placed reliance

on the judgment passed by the Hon'ble Supreme Court in the

matter of Vasantha Vs. Rajlakshmi, 2024 (5) SCC 282, wherein it

is held that the amendment of the plaint can be made at any stage

of the suit, even at the second appellate stage. He would pray to

set aside the order passed by the learned Court below.

9. On the other hand, Mr. Shadangi, learned Panel Lawyer appearing

for the State, would oppose the submissions made by Mr. Sharma.

10.Heard counsel for the parties and perused the documents present

on the record.

11.A suit filed by the petitioner for declaration of title, partition,

injunction and entitlement over the compensation was dismissed

by the learned Trial Court vide judgment and decree dated

18.03.2024. The petitioner preferred a regular appeal, which is still

pending consideration. In the pending appeal, the petitioner moved

two applications; first, under Order 41 Rule 27 of CPC and another

under Order 6 Rule 17 of CPC. The application moved under

Order 41 Rule 27 of CPC is still pending consideration.

12.Learned Appellate Court rejected the application moved under

Order 6 Rule 17 of CPC.

13.In the application moved under Order 6 Rule 17 of CPC, the

petitioner proposed an amendment claiming therein a half share of

lands and houses situated in Village Gadadih, which are not part of

the suit property.

14.It is also stated that the properties which have not been included in

the suit for partition cannot be included later for partition, and it

would be deemed that the parties have waived their rights. It is

also pleaded that the subsequent suit for partition of the rest of the

property would not be maintainable.

15.Learned counsel appearing for the petitioner has argued that the

rejection of the application moved under Order 6 Rule 17 of CPC

would amount to a deemed rejection of Order 41 Rule 27 of CPC.

16.Order 41 Rule 27 of CPC deals with the appellate Court's power to

admit additional evidence. If the parties specify exceptional

circumstances, the appellate court may allow such a party to

produce additional evidence that was not presented during the trial

Court proceeding. The party seeking to adduce additional evidence

must demonstrate that, despite due diligence, evidence could not

be produced earlier, whereas Order 6 Rule 17 of CPC deals with

the amendment of pleadings. It empowers courts to allow either

party to alter or amend their pleadings at any stage of the

proceeding, provided the amendments are necessary to determine

the real questions in controversy between the parties.

17.In the present case, in the application moved under Order 6 Rule

17 of CPC, the petitioner has stated that he got the necessary

documents during the pendency of the appeal, and those

documents have been filed along with the application under Order

41 Rule 27 of CPC. But the petitioner has not stated when the

petitioner found those documents. The petitioner was required to

demonstrate the reason why those documents were not produced

before the learned Trial Court and how the documents would not

change the nature of the suit. The petitioner has also suppressed

the fact that earlier, a compromise decree was passed between

the parties in Civil Suit No.11A/1988.

18.It is a well-settled principle of law that the application for

amendment of pleadings can be allowed at the appellate stage.

19.The Hon'ble Supreme Court in the matter of Life Insurance

Corporation of India Vs. Sanjeev Builders Private Limited and

another, 2022 (16) SCC 1, while dealing with the provisions of

Order 6 Rule 17 of CPC, held that the prayer for amendment can

be allowed if it is required for effective and proper adjudication of

the controversy between the parties to avoid the multiplicity of

proceedings, provided the amendment does not result in injustice

to the other side; the amendment does not raise a time-barred

claim. It is further held that if the amendment changes the nature

of the suit or it is malafide, it should not be allowed. Relevant paras

71.3, 71.3.1, 71.3.2, 71.4.1, 71.4.2, 71.4.3 and 71.4.4 are

reproduced herein below:-

"71.3 The prayer for amendment is to be allowed. 71.3.1 if the amendment is required for effective and proper adjudication of the controversy between the parties, 71.3.2 To avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

71.4.1 By the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, 71.4.2 the amendment changes the nature of the suit, 71.4.3 the prayer for amendment is malafide, or 71.4.4 by the amendment, the other side loses a valid defence."

20.In the present case, the petitioner has not explained the relevance

of the documents. The petitioner has not disclosed the date when

those documents were obtained, and it is also not disclosed from

whose custody those documents were acquired. Further, the

proposed amendment would change the entire nature of the case

because the petitioner has proposed to include the new suit

property, which was not part of the suit property before the learned

Trial Court, and it would bring the suit at its initial stage.

21.Considering the above-discussed facts and the law laid down by

the Hon'ble Supreme Court, in my opinion, the learned Court

below has rightly rejected the application.

22.Accordingly, this petition fails and is hereby dismissed. No cost(s).

Sd/-

(Rakesh Mohan Pandey) Judge Rekha