Jharkhand High Court
Fulmati Kuer vs Dhaneshwari Devi on 14 September, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.C. No. 6699 of 2013
Fulmati Kuer ...... Petitioner
Versus
1. Dhaneshwari Devi
2. Satyendra Soni
3. Laxmi Sao
4. Hiralal Sao
5. Sheo Soni
6. Kalawati Devi ......Respondents
.....
For the Petitioner : Mr. A.K. Sahani, Advocate
Mr. Anand Kr. Pandey, Advocate
For the Respondents : Mrs. Ritu Kumar, Advocate
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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JUDGMENT
C.A.V. On 30.08.2023 Pronounced On: 14.09.2023
1. Present petition under article 227 of the Constitution of India has been
filed by the petitioner-appellant for quashing/ setting aside the order
dated 30.08.2013 (Annexure 4) passed by District Judge-IV, Palamau at
Daltonganj, in Title Appeal No. 26 of 2011 whereby and whereunder the
petition dated 27.06.2013 (Annexure 2) filed by the petitioner under
Order VI Rule 17 read with Sections 151 and 153 of the Code of Civil
Procedure has been rejected.
2. The petitioner-plaintiff has instituted Title Suit No. 98 of 2002 (Annexure
1) for declaration of right, title and interest in respect of the suit
scheduled property and also for injunction which has been dismissed by
learned Civil Judge, Junior Division, Palamau on merits on contest. The
petitioner-plaintiff assailing the impugned Judgement and decree passed
by learned Munsiff, Palamau, dated 24.05.2011 has filed the Title Appeal
No. 26 of 2011 which was admitted on 12.07.2011 and pending for
hearing. In the meantime petitioner/appellant filed an application under
Order VI Rule 17 read with Section 151, 153 CPC proposing some
amendments in the plaint. The respondents filed their rejoinder opposing
such prayer made by the petitioner/appellant. After hearing the parties the
impugned order was passed mainly on the grounds that if the proposed
amendment is allowed to be incorporated in the plaint, it would change
the nature and character of the suit and require De Novo trial of the suit,
which in the facts and circumstances of the case is not permissible.
3. Assailing the impugned order, learned counsel for the petitioner has
submitted that the learned court below has rejected the petition filed
under Order VI Rule 17 CPC only on flimsy grounds, without recording
any finding as to how the basic structure of the suit is changed through
the proposed amendment rather the proposed amendment is only of
formal in nature and sought for incorporation in the plaint with a view to
effective decision of the controversy involved in this suit between the
parties and prevent multiplicity of litigation and it is not detrimental in
any manner to the interest of defendants/ respondents, who may be
compensated in terms of money. The proposed amendment is explanatory
of the background under which the suit property was acquired and
possessed by the ancestors of the plaintiff, which has been inherited by
her. It is further submitted that the plaintiff being an illiterate rustic
village women, could not engage a competent lawyer. She narrated about
her case and also submitted all relevant documents but due to improper
drafting and not bringing all the materials and documents the plaintiff lost
her case at trial court. Thereafter, she engaged a lawyer at the appellate
stage who advised her for amendment in the plaint. Hence, there was no
deliberate inaction or negligence on the part of the plaintiff in seeking the
proposed amendment after commencement of the trial. It is further
argued that proposed amendment of plaint is necessary to finally and
effectively adjudicate the real dispute between the parties, which may be
allowed at the appellate stage also in order to avoid further litigation. No
question of delay or limitation arises when misdescription of the name of
the original plaintiff or suit property arises in a particular suit. If the
proposed amendment is not allowed setting aside the impugned order the
plaintiff shall suffer irreparable loss in comparison to the defendants who
have no basis of their claim over the suit property.
4. Per contra learned counsel for the respondents has strenuously opposed
the point of arguments raised on behalf of the petitioner and urged that
the proposed amendments at the appellate stage has rightly been rejected
by the learned appellate court on the grounds that it changes the
fundamental structure of the plaintiff's case and put the defendant to face
new trial from the beginning. It is further submitted that in view of the
provision of Order VI Rule 17 of the Code of Civil Procedure, the
plaintiff-appellant has miserably failed to show that "inspite of
exercising due diligence" she could not discover the proposed facts and
documents to be incorporated by way of amendment after
commencement of the trial. The suit is pending from long period since
2002 which was dismissed in the year 2011 and proposed amendment
was sought in the year 2013 and on one pretext or another the case is still
pending for final hearing. Proposed amendment tend to withdraw specific
admission by the plaintiff in original plaint and adds a totally new story.
The proposed amendment is also not likely to change the fate of the case
of plaintiff, rather it will drag the defendant in second innings of the trial
on new facts causing irreparable loss/ injury to him. There is no merits in
this petition and no illegality or infirmity in the impugned order calling
for any interference by invoking the jurisdiction of this Hon'ble Court
under article 227 of the Constitution of India which is fit to be confirmed
and upheld and this petition is liable to be dismissed.
:Point for determination:
5. The only point for determination in the appeal is that whether the
impugned order suffers from any illegality/ infirmity or jurisdictional
error calling for any interference by way of this petition under article 227
of the Constitution of India?.
6. Before imparting my verdict on the above issue/point it is profitable to
discuss the factual background of the case of the parties on proposed
amendment.
Factual Background of the case
7. Plaintiff/Petitioner has instituted the Title Suit No. 98 of 2002 with
specific plea that the suit land was recorded "gairmajarua malik" in the
last cadastral survey in the name of Rani Hari Priya Mali Devi, ex-
landlady of Bishrampur, District Palamau. It is further alleged that one
Malar Mahto, father-in-law of the plaintiff was "Dehi Raiyat" in the
village Bishampur, who reclaimed and made the suit land cultivable with
permission of ex-land lady. Later on, in the fasli year 1354 ex-land lady
had settled 22 decimal land of khata no. 191 to Makorwa Koerin wife of
Malar Mahto and 1.47 acres under same khata to Malar Mahto by virtue
of two Hukumnama of permanent settlement respectively.
8. On the basis of above settlement Malar Mahto and his wife came into
possession over suit land and after their demise inherited by their only
son Panchu Mahto and his wife Fulmati Kuer (plaintiff). It is further
alleged that at the time of vesting of zamindari in the State of Bihar,
return in respect of suit land and house constructed thereon was filed by
the ex-land lady in the name of Malar Mahto and during field bujharat,
Malar Mahto and his wife Makorwa Koerin were found in possession
over the suit land. Accordingly, recognized as raiyat in the sarista of State
of Bihar and demand was opened in their name.
9. It is further pleaded that the defendant Raghunath Sao has no concern
with the suit land and the ancestors of the plaintiff never executed any
gift deed in favour of any person and the defendant is laying his claim
over the suit land without any right title and interest.
10.As per written statement of defendant the suit property belong to one
Damri Singh @ Gaur. The dispute between Malar Mahto and Damari
Singh @ Gaur was adjudicated by sarpanch of gram panchayat of
Bishrampur vide case no. 23/1960 which was compromised and and suit
land was acquired by Damri Singh, who in turn executed registered sale
deed in year 1968 in favour of defendant along with house and some
portion of vacant land. Accordingly, the defendant came into the
possession of the suit land to the knowledge of Malar Mahto and his legal
heirs who never interrupted in the peaceful possession of the defendant. It
is also alleged that registered sale deed dated 29.11.1968, the defendant
applied for assessment of rent and vide assessment case no. 7/1976-77
the order of assessment of rent was passed in favour of defendant and no
appeal or revision has been filed by the plaintiff or her ancestor against
the order of rent assessment. The plaintiff is not in possession of the suit
land and she has not claimed any consequential relief for recovery of
possession from the defendant and the suit is also barred under the
provision of Specific Relief Act, 1963.
11. The main issue amongst other settled by learned trial court are as
follows.
Issue No. 8:- is the suit land settled by ex-land lord in favour of Malar
Mahto and Makorwa Mahtain and they came in possession of the settled
land?
Issue No.9:- Is the plaintiff has right, title, interest and possession on
the basis of succession?
Issue No. 10:- Whether the plaintiff is entitle to relief as claimed for?
12. In the course of trial altogether seven witnesses were examined by the
plaintiff apart from documentary evidence. Two Hukumnama exhibit 1
and 1/a and two rent receipts exhibit 2 and 2/a.
The defendants have also examined three witnesses and adduced
following documentary evidence:- Exhibit A sale deed No. 10005 dated
29.11.1968, exhibit B and B/1-Choukidari receipts in favour of Raghu
Nath Sao dated 23.12.1972 and 10.12.1973. Exhibit C and C/1 rent
receipt dated 20.08.1999 and 25.01.2003. Exhibit D & D/1 petition dated
03.06.1960 filed by Damri Gaur before Sarpanch, Gram Panchayat
Bishrampur in case no. 23/1960. Exhibit E order passed by SDM, Sadar
Daltonganj in proceeding under Section 144 Cr.p.c. in miscellaneous case
no. 62/80. Exhibit E/1 order passed in rent case no. 07/1976-77. Exhibit F
& F/1 Notice to the Gram Panchayat, Bishrampur dated 03.06.1960.
13. It appears that after appreciation of oral as well as documentary evidence
all the above vital issues have been decided against the plaintiff which
has been assailed in the Title Appeal No. 26 of 2011.
Proposed amendment by the plaintiff:-
14. 1. In para 2 of the plaint, the word "Gair Majarua Malik" in the name of
Rani Hari Priya Mali Devi (ex-landlady), Village: Bishrampur be
substituted as " Raiyati" in the name of Lalchand Koiri, son of Tilakdhari
Koiri during the cadastral survey and Rani Hari Priya Mali Devi was ex-
landlord of the suit land.
2. The para-3, 4 and 5 be replaced by new paragraphs-3, 4 and 5 as
under:-
"That the survey recorded Raiyat of the suit land Lalchand Koiri had no
issue and he was suffering from chronic disease and remained on bed for
four to five years. Under such situation he could not pay the rent for the
land of Khata No. 191 to the ex-landlord and the rent for four to five
years was falling due. Since, there was no chance of surviving, therefore,
by calling the ex-landlord before him he orally surrendered the suit land
to him and requested to accept it and exempt him from payment of
arrears of rent. The request of the survey recorded Raiyat was accepted
by the ex-landlord named above. The surrender was made in or about the
year 1348-49 Fasli. Thereafter, the ex-landlord came in possession of the
land of Khata No. 191 treating it as his "Bakast Land".
4. That the land of Khata No. 191 was surrendered due to inability of
payment of rent by the recorded Raiyat and during that time Malar Koiri
and his wife, Makorwa Koirin who were the agnatic relatives of Lalchand
Koiri were serving him like son without having any interest. Thereafter,
when Lalchand Koiri died, considering the service of recorded Raiyat by
them and taking some Salami, the ex-landlord orally settled the land of
Khata No. 191 to Malar Koiri and his wife.
5. That Malar Koiri was settled 1.47 acres of land under Khata No. 191
and his wife, Makorwa Koirin was settled 22 decimals in the same Khata
along with other land of other Khatas in the year, 1354 Fasli by granting
Customary Parwana popularly known as Hukumnama and accordingly
bot the settlees started exercising their title and possession over the entire
land settled to them. This settlement was made by Rani Hari Priya Mali
Devi.
Analysis and Decision
15. At first relevant provision is appropriate to be extracted hereunder for
better appreciation of the issues involved in this case.
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
question in controversy between the parties:
Provided that no application for amendment shall be allowed after
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.
16. The above proviso empowers the court to accept the application of a
party to amend the pleading and simultaneously puts restriction on
the courts to use their discretion to the fullest. The proviso added
through the CPC "amendment" Act 2002 in Rule 17 is of utmost
importance in this regard, which states that courts can use their
discretion while allowing the application of amendment, when they
are fully satisfied that after "due diligence", the parties were unable
to incorporate the changes which they are now seeking by way of
amendment.
17. The said rule was omitted by way of amendment of 1999 as there
were so many applications being filed to delay the suit proceedings which
ultimately furthered the pendency of the cases. The omission was made
to shorten the duration of litigation and to speed up the trial but after sort
of agitation from the suffering class of the society, the rule was restored
to its original position but now with additional proviso that empowers the
court to entertain such plea where parties have applied their due diligence
but did not have opportunity to raise the matter before. The said
amendment of 2002 was challenged in the case of Salem Advocates Bar
Association, T.N. Vs. Union of India reported in (2005) 6 SCC 344,
there was also a challenge to proviso added in Order VI Rule 17.
Supreme Court upheld the validity of the said rule and stated that the
legislature after deleting it through 1999 amendment has reinserted it
with the intent to minimize or to prevent the frivolous application which
are filed to delay the trial. The said amendment curtails the absolute
discretion of the court to allow amendments at any stage of the suit
/proceedings.
18. Similarly in the case of Chander Kanta Bansal Vs. Rajinder Sngh
Anand reported in (2008) 5 SCC 117 & M. Revanna Vs. Anjanamma
reported in (2019) 4 SCC 332, the Hon'ble Apex Court emphasized the
amendment of 2002 shed light upon its impact on the amendment of
pleadings and observed that the said amendment was introduced to
expedite the proceeding and at the same time by adding proviso, probably
the legislature has tried not to make the procedure complete estoppels for
the parties to make an application for amendment. The object of the
proviso is to give limited discretion to the courts and that being the
subjective satisfaction of the court to allow certain amendments.
However, the ultimate focus will be on the party claiming such
amendment to prove the essentially bonafide and that despite due
diligence it was inevitable to seek the amendment earlier.
19. From the aforesaid discussion of principles of law, it is crystal clear that
the amendment in the pleadings can be made at any stage of the
proceeding which are necessary for determining the real question in
controversy between the parties and arrive at effective and final
adjudication of the case. A rider has been imposed by proviso appended
to Order VI Rule 17 CPC that if the amendment is sought after
commencement of trial, the parties seeking amendment must establish
that in spite of exercise of due diligence the party was unable to
incorporate the changes.
20. Now coming to the facts of the present case, although I am not
unmindful of the proposition of law that the approach of the courts in
dealing with an application for amendment of pleading should not be
hyper technical, as the main object of the amendment is to provide the
complete and effective adjudication of the dispute involved between the
parties and the purpose for amendment is to bring the finality to the
dispute between the parties and to avoid multiplicity of the litigation and
the court should adopt a liberal approach but it shall not permit the party
to amend the pleading if it alters the basic structure of the suit or
deliberate withdrawal from specific admission made earlier or to defeat
or take away the right accrued to the adversary and appears malafide or
tainted with ulterior motive.
21.In the instant case, the petitioner has tried to give an absolutely new
dimension to the dispute by way of proposed amendment. He also tried to
demolish the earlier case set up on the basis of permanent settlement
through Hukumnama of the suit property in favour of ancestor of plaintiff
but by proposed amendment sets a totally new story of earlier settlement
with agnates of the plaintiffs ancestor and thereafter settlement to the
ancestor of plaintiff by the ex-land lady. The reasons attributed for
making proposed amendment at the appellate stage is due to negligence
of counsel, which is also not tenable and does not justify "due diligence"
on the part of plaintiff or her counsel. I further find that the proposed
amendment serves the interest of plaintiff in reopening the case on certain
new facts but does not appear to displace the case of defendant which has
got finality by dismissal of the suit of the plaintiff. Therefore, the
amendment sought at appellate stage is just like putting a dead body on
ventilator showing that breathing is still going on, and not bonafide and
essential to incorporate in the plaint to arrive at effective and complete
decision of real controversy between the parties and it would cause grave
injustice to the defendant/respondent.
22. In view of aforesaid discussion and reasons, I arrive at definite
conclusion that impugned order suffers from no illegality/infirmity
calling for any interference exercising powers under Article 227 of
Constitution of India, Hence, present petition stands dismissed.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, at Ranchi
R.K/- A.F.R.
