Sheetal Lal vs Sadanand Rai
2022 Latest Caselaw 4044 Jhar

                                       1

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           W.P.(C) No. 2344 of 2018
                                     ---

      Sheetal Lal                          ...    ...Plaintiff/Petitioner
                                       Versus
      1.   Sadanand Rai
      2.   Jaideo Rai
      3.   Akash Devi
      4.   Babita Devi
      5.   Sunaina Devi
      6.   Balmukund Rai
      7.   Sanjay Rai                       ....    ...      Defendants/Respondents
             CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR

For the Petitioner : Mr. Pradeep Kumar Deomani, Advocate For the Respondents : Mr. P.C. Sinha, Advocate

Order No. 09 Dated: 10.10.2022

The present writ petition has been filed for quashing the order dated 31.01.2018 (Annexure-6 to the writ petition) passed by the Sub-Judge IV, Giridih in Title Suit No. 77 of 1999 whereby the petition dated 03.07.2017 filed by the petitioner under Order VI rule 17 read with Section 151 of the Code of Civil Procedure (CPC), 1973 seeking amendment of the plaint has been rejected.

2. Learned counsel for the petitioner submits that the plaintiff/petitioner filed a suit being Title Suit No. 77 of 1999 against the defendants/ respondents seeking permanent injunction as well as temporary injunction to restrain the defendants, their men, agents and representatives from obstructing him in ploughing over the land appertaining to plot no. 627, Khata No. 156, Village-Dhengadih, P.S.-Deori, District- Giridih measuring an area of 0.42 acre (hereinafter to be referred as "the suit land") as well as transplanting paddy and showing wheat crops in the said suit land. The petitioner also prayed in the said suit for appropriating the suit land in his favour till disposal of the same. During pendency of the suit, the petitioner filed a petition dated 03.07.2017 under Order VI rule 17 read with Section 151 CPC seeking amendment in relief portion of the plaint and sought to add certain reliefs regarding his declaration of right, title, interest and possession over the suit land on the grounds mentioned therein. He also prayed to amend the suit value of the property in question as Rs.5,000/- in place of earlier mentioned suit value of Rs.100/-. However, the trial court,

vide order dated 31.01.2018, rejected the prayer of the petitioner holding that the said petition was filed belatedly and the amendment sought would change the nature and character of the suit. It is further submitted that trial court failed to appreciate that the proposed amendment was necessary for determination of the real issue in controversy between the parties. The suit of the petitioner was being conducted by a junior lawyer who could not take proper steps for amendment in the plaint at the appropriate stage due to inadvertence and bonafide mistake. It is also submitted that the proposed amendment will not change the nature of suit as held by the trial court.

3. Learned counsel for the petitioner, in support of his contention, has put reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Sampath Kumar Vs. Ayyakannu and Another reported in (2002) 7 SCC 559.

4. On the contrary, learned counsel for the respondents submits that the trial court rightly rejected the amendment petition of the petitioner as the same was filed by him after his entire evidence was taken on record and that too seeking declaration of subsisting permanent occupancy raiyati right over the suit land which was completely different from the prayer made in the plaint. It is further submitted that the prayer for amendment cannot be allowed to change the nature and character of the suit since such amendment will bring back the suit at the initial stage which will prejudice to the interest of the defendants. Moreover, an amendment cannot be allowed on mere ground of incompetency of the conducting lawyer.

5. Heard learned counsel for the parties and perused the impugned order 31.01.2018 passed by the Sub-Judge IV, Giridih in Title Suit No. 77 of 1999. Learned court below rejected the petition filed by the petitioner seeking amendment of the plaint taking note of the initial prayer made in the plaint vis-à-vis the prayer sought to be changed by filing the amendment petition. The trial court held that the proposed amendment would change the nature and character of the suit since the earlier prayer was for permanent and temporary injunction, whereas by way of amendment petition dated 03.07.2017, the petitioner was seeking

declaration of subsisting permanent occupancy raiyati right over the suit land. It was further held that the petition for amendment was filed belatedly as the entire evidence of the plaintiff had already come on record.

6. I have gone through the judgment rendered in the case of Sampath Kumar (supra) in which the suit was instituted in the year 1988 and a petition for amendment of the plaint was filed in the year 1999 before the commencement of the trial for changing the earlier prayer made for permanent prohibitory injunction to a suit for declaration of title and recovery of possession of the suit property so as to introduce a cause of action which had arisen to the plaintiff during pendency of the suit. Their Lordships found that the basic structure of the suit was not altered by the proposed amendment. It was further held that Order VI Rule 17 of CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceeding on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties should be permitted to be made. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In a case where amendment is sought before commencement of trial, it can generally be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended, however, if amendment is sought after commencement of trial, the question of prejudice to the opposite party may arise and that has to be answered by reference to the facts and circumstances of each individual case.

7. The facts and circumstance of the present case is however different from the case of Sampath Kumar (supra). In the present case, the amendment petition was filed during trial that too after completion of the plaintiff's evidence. That apart, the amendment petition was filed in the said case due to subsequent events taking place during pendency of the suit and thus the plaintiff of that case was not at fault whereas in the present case, the petitioner claimed that in absence of proper instruction of his inexperienced conducting lawyer, he could not file the amendment

petition in time despite his due diligence. Thus, the proposition laid down in the case of Sampath Kumar (supra) cannot be applied in the case in hand.

8. Before coming to the merit of respective contentions of the parties, it would be appropriate to refer the provisions of Order VI rule 17 of CPC as well as the relevant judicial pronouncement dealing with the scope and extent of allowing any amendment application.

" Order VI rule 17 CPC- Amendment of pleadings.--The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

9. In the case of Vidyabai & Others Vs. Padmalatha & Another reported in (2009) 2 SCC 409, the Hon'ble Supreme Court has held as under:-

"10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:

"Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.

19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."

10. It is a trite law that although the court has power to allow an application for amendment at any stage of the suit which is necessary for the purpose of determining the real question in controversy between the parties, yet by way of the proviso to Order VI Rule 17 of CPC, certain restriction has been put to the cases where amendment applications are

filed after commencement of trial. Thus, the stages of the cases have been divided into two parts for dealing with the amendment application; the first is before the commencement of trial wherein an application for amendment may be allowed to determine the real issue in controversy and the second is after the commencement of trial where before allowing the amendment application, the court has to satisfy itself that the party seeking amendment has explained that despite due diligence, he/she could not raise the matter before the commencement of trial. This requirement is to be mandatorily followed by the courts.

11. The contention of the petitioner is that the amendment petition has been filed belatedly since his counsel was inexperienced who could not take proper steps for amendment in the plaint at appropriate stage. The court below has rightly not accepted such contention of the petitioner since any lawyer representing his/her client is expected to be proficient with legal knowledge. Thus, I am of the view that the said ground is not sufficient for allowing an amendment application at belated stage particularly when the evidence of the petitioner was already taken on record.

12. In view of the aforesaid discussion, I do not find any infirmity in the order dated 31.01.2018 passed by the Sub-Judge-IV, Giridih in Title Suit No. 77 of 1999.

13. The writ petition is, accordingly, dismissed. The interim order dated 19.11.2018 passed by this court staying further proceeding of Title Suit No. 77 of 1999 stands vacated.

14. I.A No. 7298 of 2022 also stands dismissed accordingly.

(Rajesh Shankar, J.) Ritesh/AFR