Jharkhand High Court
Biren Ghosh vs Ratan Ghosh on 3 May, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 721 of 2023
---------
Biren Ghosh, aged about 69 years, s/o Late Upin Ghosh, r/o Village-
Fudkipur, P.O. Fudkipur, P.S. Radhanagar, District-Sahibganj.
... ... Petitioner/Defendant
Versus
1. Ratan Ghosh,
2. Suresh Ghosh,
Both are sons of Late Bishu Ghosh, r/o Village-Fudkipur, P.O. Fudkipur,
P.S. Radhanagar, District-Sahibganj.
....... Respondents/Plaintiffs
---------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
----------
For the Petitioner : Mr. Birendra Kumar, Advocate
Mr. Arvind Prajapati, Advocate
For the Respondents : Mr. Rajeeva Sharma, Sr. Advocate
Mr. Om Prakash, Advocate
-----------
rd
08/Dated: 03 May, 2024
Prayer:
1. The instant petition is under Article 227 of the Constitution of India
against the order dated 17.05.2023 passed in O.S. No.17 of 2016 by the
learned Civil Judge, (Senior Division)-II, Rajmahal, whereby and
whereunder, the petition filed under Order 6 Rule 17 for incorporating the
amendment in the Schedule to the plaint by inserting the lands of plot
nos.988 and 989 by making the same subject to the partition suit.
Facts:
2. The brief facts of the case as per the pleading made in the petition which
requires to be enumerated herein, read as under:
The respondents/plaintiffs has been filed Original Suit No.-17/2016
before the Court of Ld. Civil Judge (Senior Division)-I, Rajmahal,
Sahibganj, on 20.04.2016.
On 08.01.2018 respondents/plaintiffs filed an amendment petition
under order 6 Rule-17 of C.P.C. seeking incorporation of certain plots in
the schedule of land, which were not the subject matter of the original
suit. In response to the amendment petition petitioner/defendant filed
rejoinder on 11.05.2023 denying the claim of the respondents/plaintiffs
stating that the respondents/plaintiffs therein are not the heirs of the
recorded tenants namely Pulin Ghosh because Pulin Ghosh died issueless.
It has come in the evidence of one Sanjay Ghosh in his cross-examination
that the respondents/plaintiffs are the sons of Bishu Ghosh and grandsons
of one Tufani Ghosh, who are not related to the recorded tenants, it has
further averred that a title suit bearing Title Suit No.- 22 of 2017 was filed
by the petitioners/defendants against the respondents/plaintiffs before the
court of Ld. Civil Judge 1st, Rajmahal with respect to entitlement over
Plot No.-988 and 989 belonging to Mouza-Sarfrajganj pertaining to
Jamabandi number-218/15, which has been decided and decreed in favour
of the petitioners/defendants and thereafter execution of the same land has
been effectuated by an order passed in Title Execution Case No.-9/2019 in
favour of the petitioners/defendants, which are the proposed plots in the
amendment petition filed by the respondents/plaintiffs.
The Plot No.-988 and Plot No.-989 have been given in possession to
Anil Ghosh and others occupancy from the of Anil Ghosh by an order
dated-26.07.2022 by the court of Ld. Sub-Judge, Senior Division-I,
Rajmahal, Sahibganj in Title Execution Case No.-09 of 2019.
The respondents/plaintiffs claimed their rights on the basis of the fact
that grandmother of the respondents/plaintiffs namely Nilmani Ghoshain
was the sister of Pulin Gope, who was one of the recorded tenants of the
property and on that very basis they are claiming to be the heirs and co-
shares of the Joint Hindu Family.
3. It is evident from the factual aspect that a suit for partition has been filed
by the plaintiffs, who are respondents herein, for declaration of 1/4th share
in the suit property as per the schedule mentioned in the schedule to the
plaint.
The defendant appeared and filed written statement. The suit
proceeded and reached to the stage of argument and during the aforesaid
stage, a petition was filed under Order 6 Rule 17 of the CPC for granting
leave to incorporate amendment to include lands of plot nos.988 and 989.
Objection was filed on behalf of the defendant taking the ground that
the lands of plot nos. 988 and 989 have been declared in favour of the
defendant in the Title Suit No.22 of 2017 in which the defendants were
plaintiff. It has also been stated that after the decree having been passed in
the aforesaid title suit, execution case has also been filed being Execution
Case No. 09 of 2019 for delivery of possession which was given to the
plaintiffs, as such, the suit property, i.e., lands of plot nos. 988 and 989
cannot be made subject matter of partition suit since the same has been
decreed in favour of the petitioner, the defendant to the original suit
holding the title holder.
The ground has also been taken that the decree passed in the aforesaid
title suit no.22 of 2017 has not been challenged before the higher forum
even no objection was filed at the stage of the execution proceding and
that is the reason, possession of the suit property has already been given in
favour of the petitioner/defendant.
Learned Court, however, has passed an order allowing the said
amendment petition vide order dated 17.05.2023 passed in O.S. No.17 of
2016 against which the present petition has been filed.
Arguments on behalf of the Petitioner:
4. Mr. Birendra Kumar, learned counsel for the petitioner has submitted that
at the time when the partition suit being Original Suit No. 17 of 2016 was
filed, although the suit for declaration of right and title with respect to the
lands of plot nos.988 and 989 was not filed but subsequent thereto, the
suit was filed wherein the decree was already passed in favour of the
petitioner herein and by virtue of the order passed by the executing court,
the delivery of possession of the said landed property has also been given
in favour of the petitioner.
Therefore, the landed property of plot nos. 988 and 989 cannot be said
to be subject matter of partition otherwise the decree which has been
passed holding the petitioner to the title holder of the plot nos. 988 and
989 will be diluted and the co-sharer, i.e., plaintiff to the suit, will have
the share over the property which will be in conflict with the decree
passed in Title Suit No. 22 of 2017.
But, according to learned counsel, the aforesaid aspect of the matter
has not been taken into consideration, hence, the present petition.
Arguments on behalf of the Respondents:
5. Mr. Rajeeva Sharma, learned senior counsel appearing for the respondents
has appeared in pursuance of the notice issued vide order dated
03.08.2023. It has been submitted that the amendment which has been
allowed is formal in nature and as such, the nature of suit is not being
changed.
It has also been submitted that the learned court after taking into
consideration the aforesaid aspect since has allowed the petition, hence,
the same cannot be said to suffer from error.
Analysis:
6. This Court has heard the learned counsel for the parties, gone across the
finding recorded by the learned trial court as available in the order dated
17.05.2023 passed in O.S. No.17 of 2016.
7. The factual aspect which is not in dispute in this case is that a suit for
partition has been filed by the plaintiff, who are respondent herein, The
petitioner/defendant is the co-sharer. The said suit has proceeded and
reached at the stage of argument but the plaintiff at the stage of argument
of the suit, has filed a petition under Order 6 Rule 17 of CPC for granting
leave to incorporate amendment in the schedule to the plaint by inserting
the lands of plot nos. 988 and 989 to be partitioned in between the parties.
Further undisputed fact is that the lands of plot nos. 988 and 989 have
been decreed in favour of the defendants in Title Suit No. 22 of 2017 in
which the defendant, who is plaintiff to the present suit.
8. It is thus evident that the right and title over the plot nos. 988 and 989 has
been decreed in favour of the present petitioner on context.
9. It is further undisputed fact that after the decree having been passed in
title suit no.22 of 2017 in faovur of the present petitioner. Possession over
the land has also been handed over on conclusion of the execution
proceeding being Execution Case No. 09 of 2019. The plaintiff to the suit
at the time of filing of the partition suit being Original Suit No. 17 of 2016
has not sought for partition over the plot nos. 988 and 989 seeking 1/4 th
share rather the 1/4th share has been sought for to be partitioned and in
pursuance of the details of the property referred in the schedule to the
plaint. But by filing the petition on 08.01.2018 under Order 6 Rule 17 of
CPC wherein the addition of certain plots of land belonging to the
ancestors has been sought to be incorporated. The same was objected but
overruling the said objection, the amendment has been allowed.
10. There is no dispute about the position of law that in the partition suit
there is no question of any title since the partition suit is only to be filed
amongst the co-sharer having no dispute on the issue of title. But, herein,
at the time of filing of the suit consciously the plaintiff has prayed for
partition of the suit property by seeking title over the 1/4 th share in the
entire suit property.
11.But, subsequent thereto, even knowing the fact that the declaration of
right and title has been made in favour of the petitioner who is defendant
to the original suit and in whose favour the land of plot nos. 988 and 989
in Title Suit No. 22 of 2017 has been decreed.
12.The decree passed in the Title Suit No. 22 of 2017 has attained its finality
and not only that by virtue of the proceeding initiated by filing execution
case being Execution Case No. 09 of 2019 delivery of possession was also
given to the plaintiff of the title suit no.22 of 2017, the petitioner herein.
13.It is thus evident that after the declaration of the right and title over the
plot nos. 988 and 989 in favour of the petitioner the said property is said
to be exclusive holding of the petitioner in view of the decree passed by
the competent court of civil jurisdiction and hence, the same cannot be
made part of the partition suit.
14.The property of lands of plot nos. 988 and 989 could be said to be part of
the subject matter of the present suit if there would not have been any
decree in the title suit no.22 of 2017 in favour of the plaintiff, petitioner
herein, but that is not the factual aspect herein.
15.This Court, in view of the aforesaid, is of the view that if the said
amendment will be allowed to be carried out, then the judgment passed in
the title suit no.22 of 2017 will be diluted even though the decree has been
passed by the competent court of civil jurisdiction in title suit no.22 of
2017 against the defendant to the suit.
16.This Court, after having discussed the fact and coming to the impugned
order, is of the view that the learned court has failed to appreciate the
aforesaid aspect of the matter while allowing the petition filed under
Order 6 Rule 17 of CPC. The learned court has also not appreciated the
fact that by incorporating the said amendment, the very nature of the
original suit will substantially be changed which is not the purport of the
provision of law since as per the settled position of law amendment cannot
be allowed to be incorporated if the nature of suit is going to be changed
Reference in this regard be made to the judgment rendered by the Hon'ble
Apex Court in J.J. Lal Pvt. Ltd. and Ors. vs. M.R. Murali and Anr.,
(2002) 3 SCC 98, paragraphs-12 and 13 of the said judgment reads as
under:
"12. We may straightaway refer to a decision of this Court in Majati
Subbarao v. P.V.K. Krishna Rao [(1989) 4 SCC 732] which was a case
under the Andhra Pradesh Buildings (Lease, Rent and Eviction)
Control Act, 1960. Eviction petition was filed on the ground of bona
fide requirement of the landlord. In the written statement, the tenant
denied the title of landlord which was sought to be made a ground for
eviction submitting that such denial made out a ground for eviction
under Section 10(2)(vi) of the Andhra Act. This Court, rejecting the
argument that the denial of title must be anterior to the proceedings for
eviction, held that even a denial of a landlord's title by the tenant in the
written statement in an eviction petition under the Rent Act furnishes a
ground for eviction and can be relied upon in the very proceedings in
which the written statement containing the denial has been filed. The
reasoning which appealed to this Court was that to insist that a denial
of title in the written statement cannot be taken advantage of in that suit
but can be taken advantage of only in a subsequent suit to be filed by
the landlord, would only lead to unnecessary multiplicity of legal
proceedings as the landlord would be obliged to file a second suit for
ejectment of the tenant on the ground of forfeiture entailed by the
tenant's denial of character as a tenant in the written statement. The
submission of the learned counsel for the tenant was that in any event
the landlord had failed to apply for amendment of his plaint and
incorporate the ground of denial of title therein as he was bound to do
in order to get relief on that ground which had arisen after the eviction
petition was filed. This Court held : (SCC p. 738, para 6)
"We agree that normally this would have been so but, in the present
case, we find that the trial court, namely, the Rent
Controller, framed an issue as to whether the tenant's denial of the
landlord's title to the schedule property including the said premises
was bona fide. The parties went to trial on this clear issue and the
appellant had full knowledge of the ground alleged against him. It
was open to him to have objected to the framing of this issue on the
ground that it was not alleged in the eviction petition that the
appellant had denied the title of the respondent and that the denial of
title was bona fide. If he had done that the respondent could have
well applied for an amendment of the eviction petition to incorporate
that ground. Having failed to raise that contention at that stage it is
not open now to the appellant to say that the eviction decree could
not be passed against him as the ground of denial of title was not
pleaded in the eviction petition."
(emphasis supplied)
13. Recently in Om Prakash Gupta v. Ranbir B. Goyal [(2002) 2 SCC
256] while dealing with power of the court to take note of subsequent
events and then to grant, deny or modify the relief sought for in the
plaint, this Court has held : (See pp. 262-63, paras 11-12)
"11. The ordinary rule of civil law is that the rights of the parties
stand crystallised on the date of the institution of the suit and,
therefore, the decree in a suit should accord with the rights of the
parties as they stood at the commencement of the lis. However, the
Court has power to take note of subsequent events and mould the
relief accordingly subject to the following conditions being
satisfied : (i) that the relief, as claimed originally has, by reason of
subsequent events, become inappropriate or cannot be granted; (ii)
that taking note of such subsequent event or changed
circumstances would shorten litigation and enable complete justice
being done to the parties; and (iii) that such subsequent event is
brought to the notice of the court promptly and in accordance with
the rules of procedural law so that the opposite party is not taken
by surprise.
12. Such subsequent event may be one purely of law or founded on
facts. In the former case, the court may take judicial notice of the
event and before acting thereon put the parties on notice of how the
change in law is going to affect the rights and obligations of the
parties and modify or mould the course of litigation or the relief so
as to bring it in conformity with the law. In the latter case, the
party relying on the subsequent event, which consists of facts not
beyond pale of controversy either as to their existence or in their
impact, is expected to have resort to amendment of pleadings under
Order 6 Rule 17 CPC. Such subsequent event, the Court may
permit being introduced into the pleadings by way of amendment as
it would be necessary to do so for the purpose of determining real
questions in controversy between the parties."
The Hon'ble Apex Court in Rajkumar Gurawara vs. S.K.
Sarwagi and Company Private Limited and Anr., (2008) 14 SCC 364
has laid down the conditions of the amendment as under paragraph-18
which reads as under:
"18. Further, it is relevant to point out that in the original suit, the
plaintiff prayed for declaration of his exclusive right to do mining
operations and to use and sell the suit schedule property and in the
petition filed during the course of the arguments, he prayed for
recovery of possession and damages from the second defendant. It is
settled law that the grant of application for amendment be subject to
certain conditions, namely, (i) when the nature of it is changed by
permitting amendment; (ii) when the amendment would result in
introducing new cause of action and intends to prejudice the other
party; (iii) when allowing amendment application defeats the law of
limitation. The plaintiff not only failed to satisfy the conditions
prescribed in proviso to Order 6 Rule 17 but even on merits his claim is
liable to be rejected. All these relevant aspects have been duly
considered by the High Court and rightly set aside the order dated 10-
3-2004 of the Additional District Judge."
The same view has been reiterated in the judgment rendered by
the Hon'ble Apex Court in Revajeetu Builders and Developers vs.
Narayanaswamy and sons and Ors., (2009) 10 SCC 84. Relevant
paragraph -63 reads as under:
"63. On critically analysing both the English and Indian cases,
some basic principles emerge which ought to be taken into
consideration while allowing or rejecting the application for
amendment:
(1) whether the amendment sought is imperative for proper and
effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side
which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to
multiple litigation;
(5) whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh
suit on the amended claims would be barred by limitation on the date of
application.
These are some of the important factors which may be kept in mind
while dealing with application filed under Order 6 Rule 17. These are
only illustrative and not exhaustive."
Thus, it is evident that the Hon'ble Apex Court has laid down
the conditions of amendment: (i) when the nature of the suit is not
changed; (ii) when the amendment would result in introducing new cause
of action and intends to prejudice the other party; (iii) when defeats the
law of limitation, if fresh suit of amendment plaint would be passed; (iv)
when there is a general rule it would be rejected but to avoid multiplicity
it can be allowed.
17.This Court is conscious of the fact with respect to the power conferred
which is to be exercised under Article 227 of the Constitution of India as
per the judgment rendered by the Hon'ble Apex Court in Shalini Shyam
Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has
been pleased to laid down therein regarding the scope of Article 227
which relates to the supervisory powers of the High Courts and by taking
aid of the judgment rendered by the Hon'ble Full Bench of Calcutta High
Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee,
reported in AIR 1951 Calcutta 193, wherein it has been laid down that
Article 227 of the Constitution of India does not vest the High Court with
limitless power which may be exercised at the court's discretion to
remove the hardship of particular decisions. The power of
superintendence confers power of a known and well recognized character
and should be exercised on those judicial principles which give it its
character. In general words, the High Court's power of superintendence is
a power to keep the subordinate courts within the bounds of the authority,
to see that they do what their duty requires and that they do it in a legal
manner.
18.The power of superintendence is not to be exercised unless there has been;
(a) An unwarranted assumption of jurisdiction, not vested in a court or
tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to
exercise jurisdiction vested in courts or tribunals.
19.Further, in the aforesaid judgment the Hon'ble Apex Court has taken aid
of a judgment rendered in the case of Mani Nariman Daruwala Vrs.
Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid
down that in exercise of jurisdiction under Article 227, the High Court can
set aside or reverse finding of an inferior court or tribunal only in a case
where there is no evidence or where no reasonable person could possibly
have come to the conclusion which the court or tribunal has come to.
20.The Hon'ble Apex Court has made it clear that except to this limited
extent the High court has no jurisdiction to interfere with the finding of
facts.
21.Further, the judgment rendered by the Hon'ble Apex Court in the case of
Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi,
reported in (1995) 6 SCC 576 it has been laid down that the High Court
under Article 227 cannot assume unlimited prerogative to correct all
species of hardship or wrong decisions. Its exercise must be restricted to
grave dereliction of duty and flagrant abuse of fundamental principles of
law and justice.
22.Although while exercising the power conferred under Article 227 of the
Constitution of India, least interference is to be given of the order passed
by the competent court of civil jurisdiction and as such, the interference
can only be made if there is manifest error available on the face of the
order.
Conclusion:
23.This Court, on the principle of the aforesaid, is of the view that while
allowing the petition filed under Order 6 Rule 17 of CPC by inserting the
lands of plot nos. 988 and 989 as a part of the schedule property to the
plaint making such plots subject matter of partition cannot be said to be
approved otherwise, the decree passed in title suit no.22 of 2017 in favour
of the petitioner will be diluted and the decree itself will be redundant and
also the entire nature of suit will also be changed.
24.This Court, taking into consideration the aforesaid fact, is of the view that
the order which has been passed as impugned in the present petition,
needs to be interfered with.
25.Accordingly, the order dated 17.05.2023 passed in O.S. No.17 of 2016 is
hereby quashed and set aside.
26.In the result, the instant petition stands allowed.
(Sujit Narayan Prasad, J.)
Saurabh/-
A.F.R.
