Sonu Yadav vs Mahru Yadav
2023 Latest Caselaw 3721 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           W.P.C. No. 4175 of 2017
1. Sonu Yadav
2. Karmi Devi                                         ...... Petitioners
                                  Versus
1. Mahru Yadav
2. Baleshwar Yadav
3. Birendra Yadav
4. Khemlal Yadav
5. Birbal Yadav
6. Mukesh Yadav
7. Mithlesh Yadav                                     ......Respondents
                                  .....
For the Petitioners   : Mr. Munna Lal Yadav, Advocate
For the Respondents : Mr. Vijay Kumar Sharma, Advocate

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                       PRESENT
      HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
                          -----
                                JUDGMENT

C.A.V. On 27.09.2023 Pronounced On: 05.10.2023

1. Present petition under Article of 227 of Constitution of India has been filed by petitioners/plaintiffs for setting aside the order dated 20.06.2017 passed by the learned Civil Judge Junior Division, Chatra in O.S. No. 34/2013 (Annexure5 to the writ petition) whereby and whereunder the learned Civil Judge Junior Division has dismissed the application of the petitioner filed under Order VI Rule 17 CPC.

2. The Plaintiffs/Petitioners has instituted the aforesaid suit seeking following reliefs

(a) For that on adjudication title of the Plaintiff over the suit land or suit properties mentioned in scheduled D be declared.

(b) For that possession of the Plaintiff over the suit scheduled (D) land be confirmed, if plaintiff found dispossessed during pendency of the suit be put in Khas possession by process of this Court after evicting the Defendants.

(c) For that it be declared that registered sale vide sale deed no. 79 dated 20.01.1947 executed by Amritiya Gowalin in favour of Lalit Mahto father of

defendant no. 1 and grandfather of defendant no. 2 to 7, illegal, null and void, inoperative and does not convey any right title interest and possession over the suit land (vended lands) to purchaser Lalit Mahto and his son and grandsons Defendant Nos. 1 to 7.

(d) For that permanent injunction against the defendants their agents or servants be granted by restraining them in making any interference in peaceful possession of the plaintiff along with cost and other reliefs which may be deemed fit.

3. The defendants appeared and have filed their joint written statement denying and disputing the claim of plaintiffs. It is alleged that the plaintiffs have mentioned wrong genealogy and facts regarding heirs and successors of recorded raiyat. True fact is that Mostt. Amritiya Gowalin widow of Jagan Mahto succeeded the property of Khata No. 47 and held it in her maintenance and subsequently on 21.01.1947 she executed sale deed of her share in the property so inherited 0.01 acre in plot no. 136, 0.96 &1/2 acres in plot no. 138 and whole of 0.17 acres in plot no. 686 which was allotted to her father-in-law in partition, total being 1.14 &1/2 acres in favour of Lalit Mahto, her cousin for valuable consideration through registered sale deed no. 79/1947 and put the purchaser in false possession. The defendants being heirs and legal representatives are in peaceful of the same.

4. The petitioners/plaintiffs have filed an application under Order VI Rule 17 after settlement of issues and at the stage of plaintiffs evidence stating therein that due to typographical mistake cropped up in the plaint proposed following amendment in the plaint-

Proposed amendment

1. That in page no.10 para no.25, 4th line of plaint before the word in and after word Gawalin sentence "@ Jagni wife of Jagan Mahto@ Bhagan" be inserted.

2. That in para no.10, para no. 26 of the plaint in the first line, after the word Gawalin and before the word was, a sentence " @ Jagani wife of Jagan Mahto @ Bhagan was not resident of village Akouna and she was resident of village Khirgadda" be inserted.

3. That in page no.11, para 27, third line from top of the plaint before the word without and after the word Gawalin, the sentence " @ Jagani wife of Jagan Mahto @ Bhagan" be inserted.

4. That in page no.11 para no.29 in the last line of the plaint before the word in and after the word Gowalin, a sentence @ Jagani wife of Jagan Mahto @ Bhagan" be inserted.

It was pleaded that above amendments are purely formal in nature and does not change the nature of the suit or likely to prejudiced the defendants in the suit.

5. The defendants/respondents filed their rejoinder objecting the proposed amendment on the ground of falsity and change the nature of the suit and no documentary evidence to primafacie establish that Amritiya Gowalin had any alias

name Jagni rather Amritiya and Jagni were two different ladies. The proposed amendment is a concocted story and if allowed itself cause irreparable loss to the defendants hence fit to be dismissed.

6. The learned Trial court has dismissed/ rejected the application of plaintiffs relying on the Judgment of Jharkhand High Court in Himanshu Shekhar Versus Kumar Mahesh Chandra reported in JLJR 2008 (2) 335 wherein it was held that the facts which were within the knowledge of the plaintiffs at the time of drafting the plaint cannot be permitted to be bring on record through amendments after commencement of trial. It was also observed that no documentary evidence has been brought on record that Amritiya has any alias name Jagni.

7. For better appreciation relevant provision of the Code of Civil Procedure is extracted hereunder Order VI Rule 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.

8. In the case of Mashyak Grihnirman Sahakari Sanstha Maryadit Versus Usman Habib Dhuka & Ors. report in (2013) 2 JLJR 324 (SC) it was held by Hon'ble Apex Court that when main ground for seeking amendments were within the knowledge of the plaintiffs at the time of filing of the suit but they failed to incorporate the same in the suit and further failed to show that proposed amendment is necessary for determining the real question in controversy between the parties and exercise of due diligence. Such type of amendment sought by the plaintiffs at belated stage of the suit and afterthought for the obvious purpose to avert the inevitable consequences cannot be allowed .

In the case of Bhola Mehta Versus Mostt. Radha Kuer & Ors. reported in 2018 (4) JLJR 313 JHC, it has been held that " Party shall not be permitted to amend the pleading after the trial in the suit has commenced and the proposed amendment would completely change the stand of the parties. After settlement of the issued in the suit, cannot be permitted as it would cause serious prejudice to the other parties. Further, the petitioner fail to show that amendment as sought is necessary for resolving the real controversy in the suit.

9. In the instance case an application under Order VI Rule 17 CPC was filed by the plaintiffs/petitioners after settlement of issues and at the stage of evidence of the plaintiffs. It is well settled principle of law that the court may permit amendment in the pleadings at any stage even at the stage of final hearing of the suit but it must be shown that the amendment is necessary for deciding the real controversies involved in the suit and in spite of due diligence the said facts could not be brought on record. In the instant case the suit was filed in the year 2013 and proposed amendment was sought after one year merely on the ground that it was a

typographical mistake but the proposed amendment not only seeks the change of real name of the vendor of plaintiffs but also her place of residence for which no bonafide materials has been placed. It is also not pleaded that the said amendment is necessary for adjudication of real issues involved in a case finely and effectively. An amendment of plaint even of formal nature may not be allowed simply at the desire of the plaintiffs, hence, I don't find any illegality or infirmity in the impugned order, dated 20.06.2017 passed in O.S. No. 34/2013 by the learned Civil Judge Junior Division, Chatra which is hereby upheld and this writ petition is dismissed.

(Pradeep Kumar Srivastava, J.) Jharkhand High Court, at Ranchi Rajnish/-