Srimati Vinita Devi vs Sanjay Kumar
2023 Latest Caselaw 2804 Jhar

                                     -1-                                  C.M.P. No.438 of 2023



     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                C.M.P. No.438 of 2023
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1. Srimati Vinita Devi

2. Niwaran Das .... .... .... Petitioners Versus

1. Sanjay Kumar

2. Kamlesh Kumar .... .... .... Respondents

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Coram: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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For the Petitioners : Mr. Pandey Neeraj Rai, Advocate Mr. Rohit Ranjan Sinha, Adv.

Mr. Akchansh Kishore, Adv.

For the Respondents : Mr. R.C.P. Sah, Adv.

Mr. C.A. Bardhan, Adv.

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Order No.03 Dated- 11.08.2023 The instant civil miscellaneous petition has been preferred by petitioners/plaintiffs for quashing the impugned order dated 03.02.2023 passed in Title Suit No.64 of 2021 by Civil Judge (S.D.) VII, Hazaribagh, whereby and whereunder the application dated 17.11.2022(Annexure-4) filed under order 6 rule 17 of CPC on behalf of plaintiffs has been dismissed.

2. plaintiffs/petitioners have instituted Title Suit No.64 of 2021 claiming relief(s) for declaration of right, title interest over the suit property which the defendants forcibly occupied and illegally dispossessed the plaintiffs and also for recovery of possession coupled with injunction restraining the defendants from raising any construction over the suit land.

3. According to the plaintiffs, the suit property pertaining to Khata No.25, plot No.121 area 8 decimals of land situated in village Masirpirhi District Hazaribagh was purchased by plaintiff No.1 from one Smt. Sudama Sinha wife of Ramjatan Singh through registered sale deed dated 12.11.2018 for valuable consideration amount of Rs.8 lakhs(Rs. Eight lakhs).

4. It is alleged that the vendor of the plaintiffs Smt. Sudama Sinha has purchased the said land from one Smt. RitaLal wife of Pramodh Bihari Lal vide registered Sale Deed No. 15336 dated 18.10.2000. After purchase of the said land, she got mutated the land and correction slip and rent receipt was also issued in her favour along with the land possession certificate issued by Circle Officer, Sadar Bazar Hazaribagh. It is averred that the defendants being men of muscles power forcibly,

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dispossessed the plaintiffs from the suit land by dividing it into two parts and northern part has been occupied by defendant No.2 and southern part by defendant No.1.

5. The defendant/respondent Nos.1 and 2 appeared in the suit and filed their respective written statement on 30.05.2022 denying claim of plaintiffs over the suit property. It is pleaded that the defendants have purchased 6 decimals of land out of total 8 decimals of land of suit scheduled property through registered Sale Deed No.1354/1319 dated 03.03.2016 and defendant No.2 claimed to have purchased 5 decimals of land forming part of plot No.121 from Smt. Pratima Singh vide registered Sale Deed No.1353/1318 dated 03.03.2016. The defendants have also denied the right, title interest of the vendors of plaintiffs.

6. In order to meet out the points raised in the written statement, the plaintiffs have filed application under order 6 rule 17 of CPC stating that due to inadvertence and over sight, they omitted to state the facts as to how their vendor Ritlan had acquired title and possession over the suit land and as such it become necessary to amend the plaint to clarify and explain by way of amendment to counter the facts raised in the written statement of defendants Proposed amendment is as follows:-

A. That after para 11 of the plaint sub paras 11(a)(b) and (c) be added as follows:-

11(a) "That Sohar Mahto took raiyati settlement of 87 decimal of land of plot No-121 for the Ex-land lord and came in possession upon the same. The said settleee Sohar Mahto died leaving behind a son Govrdhan Mahto, who sold and transferred the said land in favour of satyendra Prasad Sinha by virtue of registered sale deed dated 05.10.59 and put him possession upon the same.

11(b) That Satyendra Prasad Sinha died leaving behind two sons namely Sunil Sinha and Sanjay Sinha and a daughter namely Sangita Devi, who came in joint possession upon the said 87 decimal of land besides other land left behind Satyendra Sinha. After death of Satyendra Sinha Sanjay Sinha being need of money for legal necessities of the joint family and with consent of his brother and sister, sold and transferred the said 87 decimal of land in favour of Pramodh Bihar Lal vide registered sale deed dated 14/6/88 for a valuable consideration and put him in possession upon

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the same. After death of Pramodh Bihar Lal his wife Rita Lal sold and transferred 8 decimal of land out of 87 decimal of land in favour of Sudama Sinha and put her in possession upon the same. The name of Sudama Sinha duly mutated and she paid rent to the state against the grant of rent receipt. The said Sudama Sinha in exercise of absolute title and possession sold and transferred the said 8 decimal of land in favour of plaintiff by virtue of registered sale deed dated 22/12/18 and put him in possession thereon. The plaintiff thus acquired valid right title upon the said 8 decimal of land in suit.

11(C) That it is absolutely false to say that after death of satyendra Prasad Sinha, there was a partition between his legal heirs and in the said partition 40 decimal of land of plot No-121 was allotted to sunil Kumar Sinha and 47 decimal of land was allotted to Sangita Sinha @ Sunita Sinha and Sanjay Kumar Sinha was allotted 52 decimal of and in plot No-24 of Khata No-24. The entire story of alleged partition is mere concoction for the purpose of the suit and in order to defend the claim of the plaintiff".

7. The defendants filed their rejoinder on 11.12.2022 against the proposed amendment application mainly controverting the same on the grounds that amendment application has been filed after filing of written statement of defendants with a view causing unnecessary delay in proceedings of the suit. The suit is at the stage of settlement of issues, and if the proposed amendment is allowed, the defendants would be compelled to file their supplementary/ additional written statement causing further unnecessary delay in proceeding of suit and financial loss to the defendants. It is further alleged that during pendency of application under order 6 rule 17 of CPC, the defendants have filed their proposed issues and the Ld. Trial court has settled the issues, fixing the case for evidence of plaintiffs. Hence, trial has commenced and plaintiff has miserably failed to plead and prove "due diligence" on his part as required by the proviso of order 6 rule 17 of CPC.

8. Learned court below after hearing the arguments of both parties has dismissed the application of the plaintiffs.

Relevant portion of the impugned order is extracted as under:

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" it appears from the case record that the stage of appearance has completed and defendants have filed written statement. Thereafter, case was pending for framing the issues, on the date of this petition. It further appears that issue has been framed. This court is of the view that proposed amendment will change the nature of the suit. In the facts and circumstances narrated above this petition is dismissed"

Argument of Petitioner

9. Learned counsel for the petitioner assailing the impugned order has argued that impugned order shows two reasons for rejecting of application under order 6 rule 17 of CPC as under;

(i) petition is filed at belated stage of proceeding after commencement of trial

(ii) the proposed amendment will change the nature of the suit Both grounds are not sustainable under law.

Elucidating his argument, learned counsel has further contended that admittedly, on the date of filing application the case was fixed for settlement of issues and issues were settled after filing of amendment application, hence, trial of suit has not commenced. Similarly, proposed amendment in no manner affects the rights of defendants or adversely cause prejudice or is tending to change the very nature of the suit. The delay caused, if any in this case may be compensated in terms of money.

Argument of Respondents

10. Per contra:- Learned counsel for respondent Nos.1 and 2 refuting the aforesaid contentions of the petitioners/plaintiffs has submitted that the Title Suit No.64 of 2021 was instituted on 06.07.2021 and the respondents have filed their written statement on 30.05.2022 and also submitted list of proposed issues on 03.11.2022. Then the plaintiffs have filed application for proposed amendment under order 6 Rule 17 of C.PC on 17.11.2022 in order to fill up lacuna in his case causing delay in trial of the suit. The defendants filed a rejoinder against the aforesaid application on 13.12.2022. It is further submitted that in between passing the impugned order, learned trial court has settled the issues and vide order dated 23.11.2022, the case was fixed for plaintiffs' evidence and after passing the impugned order, the evidence was not adduced by the plaintiffs so the evidence of plaintiff was closed on 27.02.2023 and the case was fixed for adducing evidence by defendants/respondents on 14.03.2023. "At this stage of proceeding, the

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amendment of plaint, if allowed great injustice will be caused to the respondents, which cannot be compensated in terms of money, hence this petition is fit to be dismissed.

Point for Determination

11. On perusal of the record and considering the rival contentions of the parties following points emerges for consideration:-

(i) whether the impugned order suffers from any illegality or infirmity and liable to set aside?

(ii) whether the proposed amendment can change the nature of the suit?

FINDINGS

12. Relevant provisions and leading judgment of Hon'ble "Apex Court touching the issues involved in this case; appears profitable to be discussed: order 6 Rule 17-.

[17. Amendment of pleadings- The court may at any stage of the proceedings allow either party to alter or amend his pleadings 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.]

13. In the case of Baldev Singh & Others Vs. Manohar Singh & Anr. reported in (2006) 6SCC 498, it was held that "proviso to order 6 rule 17 of CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that in fact, the trial has not yet commenced. It appears from record that the parties have yet to file their documentary evidence in the suit. From the record it also appears that suit was not on the verge of conclusion as found by the High Court and trial court. That apart, commencement of trial as used in proviso to order 6 rule 17, must be understood in the limited sense as meaning the final hearing of the suit, examination of witness, filing of documents and addressing of arguments. As noted

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hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to order 6 rule 17 of CPC, which confers wider power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings.

14. It is not the authority for the proposition that the trial would not deemed to have commenced on the date of first hearing. In that case as noticed hereinabove, the documents were yet to be filed and therefore, it was held that the trial did not commence.

15. In the case Life Insurance Corporation of India Vs. Sanjeev Builders 2022 SCC, the Hon'ble Apex Court has reiterated the following guidelines for deciding the application for amendment of pleading under order 6, Rule 17 of CPC.

When the amendment to be allowed:-

(I) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice to the other side. This is mandatory as is apparent from the used of the word "shall" in the latter part of order VI, Rule 17 of the CPC.

(II)(i)if amendment is required for effective and proper adjudication of the controversy between the parties and

(ii) to avoid multiplicity of proceedings provided;

(a) the amendment does not cause injustice to other side

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

(c) the amendment does not raise a time barred claim resulting in divasting of the other side of a valuable accrued right (in certain situations) (III) the prayer for amendment is generally required to be allowed unless:

(a) the amendment changes the nature of the suit

(b) the prayer for amendment is malafide or

(c) by amendment the other side loses to a valid defence (IV) In dealing with a prayer for amendment of the pleadings, the court should avoid the hyper technical approach, and is ordinarily be required to be liberal to especially, where the opposite party can

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be compensated by costs. The court should also be liberal if the amendment is sought before commencement of trial.

(V) where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation (VI) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in plaint.

(Vii) Delay in applying for amendment alone is not a ground to disallow the prayer, where aspects of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision (Viii) where the amendment changes the nature of suit or the cause of action so as to set up an entirely new case, or to the case set up in the plaint, the amendment must be disallowed. Where, however, amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(IX) where the amendment is sought before the commencement of trial the court is required to be liberal in its approach, the court is required to bear in mind the fact that the opposite party who have a chance to meet the case set up in amendment.

16. Coming back to the factual background of the case in hand, it is obvious that at the time of presenting the application under order 6 rule 17 of CPC by the petitioners the suit was fixed for settlement of issues after submission of written statement of the defendants/respondents. The Ld. Court below without disposing of the said application fixed the case for settlement of issues and in the meantime after settlement of issues , fixed the case for adducing evidence by plaintiffs. Although, the rejoinder to the said application was filed by defendants subsequent to the framing of issues and ultimately the application was disposed off vide order dated 03.02.2023. Therefore, it cannot be said that the proposed amendment was sought after commencement of the trial, so as to attract the proviso attached to order 6 rule 17 of CPC.

17. From the aforesaid discussion of legal principles propounded by the Hon'ble Apex Court, it is crystal clear that mere delay in filing an application for amendment of pleading is no ground to reject the same out rightly, if it satisfies the other aspects that the proposed amendment

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is necessary for complete adjudication of controversy involved in the case and to arrive at a right decision.

18. In the instant case, the proposed amendment is also not changing the nature and character of the suit as pointed out in the impugned order without discussing relevant factors and recording any reasons. Proposed amendments are only explanatory to the basic stand taken by the plaintiffs in their plaint to justify their right, title and interest in the suit property.

19. It is indispensable duty of trial courts to discuss and record objective findings with sound reasons, while dealing with an application under order VI Rule 17 of th3e Code of Civil Procedure. The twin test must always be kept in mind that the amendment sought are necessary to effective and proper adjudication of lis between the parties and does not cause irreparable injustice to other side.

20. The object of amendment of pleadings is to protect the rights of the parties and not to punish for their mistakes in pleadings. It should be borne in mind that law of procedure is made to sub-serve the cause of justice as a lubricant and not as a resistant in the course of proceedings.

In view of the aforesaid discussion and reasons, I find merits in this petition and hold that the impugned order is not justified and learned court below has improperly exercised his jurisdiction while rejecting the application of petitioners under order 6 Rule 17 of CPC, which is hereby set aside and this civil miscellaneous petition is allowed.

21. Needless to say that the Ld. Trial court shall permit to incorporate the proposed amendments in the plaint and pass other consequential orders securing the interest of defendants also.

(Pradeep Kumar Srivastava, J.) Pappu/