Dhanoki Mahto @ Dhanuki Mahto vs Pawan Kumar Rajgarhia
2025 Latest Caselaw 4614 Jhar

Jharkhand High Court

Dhanoki Mahto @ Dhanuki Mahto vs Pawan Kumar Rajgarhia on 8 April, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

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       IN     THE HIGH COURT OF JHARKHAND AT RANCHI
                            C.M.P. No. 341 of 2023
       Dhanoki Mahto @ Dhanuki Mahto, Aged about 61
       years, son of late Duar Mahto, Resident of Village
       Makoria, Jorasankh, P.O. Dwarpahari, P.S. Jamua,
       District-Giridih.
                                                    .....    ...    Petitioner
                               Versus
       1. Pawan Kumar Rajgarhia, son of late Banshidhar
       Rajgarhia @Banshilal Rajgarhia, Resident of
       Kailash Bhawan, Gaganchandra Mukherjee Road,
       P.O. & P.S. Giridih, District-Giridih.
       1. Basudeo Mahto
       2. Shobha Mahto
       3. Rajendra Prasad Verma
       4. Satyanarayan Verma
            All sons of late Sona Mahto
       5. Cholho Mahto
       6. Murlidhar Mahto
            Both sons of late Kamlapati Mahto
       7. Basudeo Mahto
       8. Sarju Mahto
            Both sons of Narayan Mahto
       9. Jhari Mahto
       10. Dasrath Mahto
            Both sons of late Chamru Mahto
            All are Residents of At & Village Makoria
       which is also known as Village Jorasankh, P.O.
       Dwarpahari, P.S. Jamua, District-Giridih.
                                                   .....     ...    Opposite Parties
                                 --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Atanu Banerjee, Advocate. For the O.P. Nos. 1, 8 to 10: Mr. Chandrajit Mukherjee, Advocate. For the O.P. No. 1 : Mr. Amar Kumar Sinha, Advocate.

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07/ 08.04.2025 Heard Mr. Atanu Banerjee, learned counsel appearing for

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the petitioner, Mr. Amar Kumar Sinha, learned counsel for the O.P. No. 1 and Mr. Chandrajit Mukherjee, learned counsel appearing for the O.P. Nos. 1 and 8 to 10, who are the proforma opposite parties.

2. This petition has been filed under Article 227 of the Constitution of India, wherein prayer has been made for setting aside the order dated 03.01.2023, passed in Original Suit No. 128 of 2012, by the learned Sub-Judge-III, Giridih, by which, the petition dated 27.07.2022 filed on behalf of the petitioner/defendant under Order-VI Rule-17 read with Section 151 CPC has been rejected by the learned court.

3. Mr. Banerjee, learned counsel appearing for the petitioner submits that one Title Suit No. 128 of 2012 was instituted by Pawan Kumar Rajgarhia in the court of Sub-Ordinate Judge, Giridih against 13 defendants including this petitioner, in which, the plaintiff has sought relief for declaration and confirmation of his indefeasible and subsisting right, title and possession on and upon suit properties which is described in Item No. I and II of Schedule-A of the plaint i.e. the land measuring an area about 7.45 acres in Survey Plot No. 1028/1063 under Khata No. 28 in Mauja Jaruadih and three rooms in Plot No. 1029 under Khata No. 4 of Majua Jaruadih. He submits that further prayer was made in the suit for a decree for demolition and destruction of the structure and rooms described in Item No. 2 of Schedule-A i.e. and cost has also been prayed. He submits that on receiving notice, the defendants have appeared and file their written statement on behalf of 1 to 4 and 9 to 13, wherein they have specifically denied the allegations made in the complaint. He further submits that in the written statement, it has been pleaded that the right and title they have acquired through Hemraj Mahto. He then submits that the suit has been proceeded further and both the sides have examined their witnesses and on 27.07.2022, a petition under Order-VI Rule-17 CPC has been filed for amendment in the written statement to the effect that Hemraj Mahto was Thekedar of

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ex-landlord Bansidhar Rajgaria and, who filed return at the time of vesting of Jamindari in compensation case No. 238 of 1956-57. He submits that only that was sought to be amended in the written statement and the same is formal in nature, in spite of that the learned court has been pleased to reject the same considering that the nature of the suit will be changed. He further submits that the law is well settled that the court should remain liberal in allowing the formal nature of amendment.

4. Learned counsel submits that this court has also considered the aforesaid aspect of the matter in the case of Manjur Mian @ Md. Manjur Alam Versus Mustakim Mian & Ors. in C.M.P. No. 693 of 2023 and in the case of Kole Oraon & Ors. Versus Lodha Oraon & Ors. in C.M.P. No. 1355 of 2023, decided by the judgment dated 15.01.2025 and 24.03.2025 respectively. He submits that in the case of Kole Oraon & Ors. (supra), the case of Life Insurance Corporation of India Versus Sanjeev Builders Private Limited & Anr. has been considered by the court, wherein the rules of procedure have also been considered and the amendment petition has been allowed. He then submits that the nature of the suit will not be changed if the amendment is allowed, in spite of that the learned court has rejected the said prayer.

5. Learned counsel appearing for the opposite parties has opposed the prayer and submits that the nature of the suit has been tried to be changed. He draws the attention of the court towards the written statement, filed by the defendants and submits that in the written statement, it has been mentioned that Hemraj Mahto was the landlord, whereas in the amendment petition, the said admission has been tried to be changed by way of saying that he was only the Thekedar of the landlord and that too has been tried to be done at the belated stage, i.e. at the time of argument.

6. Learned counsel appearing for the opposite parties relied in the case of Sharifuddin Ansari @ Md. Sarifuddin Ansari & Ors.

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Versus Netaji Subhash Griha Nirman Co-operate Society & Ors. in C.M.P. No. 449 of 2021, which was decided on 18.02.2025 by this court. Reliance has also been placed in the case of Life Insurance Corporation of India Versus Sanjeev Builders Private Limited & Anr., reported in (2022) 0 Supreme (SC) 864. Relying on these judgments, he submits that the learned court has rightly passed the order and this petition is fit to be dismissed.

7. In view of the above submissions of learned counsel appearing for the respective parties, the court has gone through the materials on record. In the written statement, particularly in the later part of para-10 thereof, it has been disclosed that Sundar mall and Raj Kumar Lal became absolute owner of 16 annas Jamindari interest, although they purchased only 1 ana 9 ¼ pai. In para-15, it has further been disclosed that landlord of khata No. 40 and 41 was Hemraj Mahto.

8. Admittedly, the suit was proceeded and both the sides have examined the witnesses and the same has come to the stage of argument and in that stage the said petition has been filed for amendment to the effect that Hemraj Mahto was the landlord, whereas in the amendment petition, the said admission has been tried to be changed by way of saying that he was only the Thekedar of the landlord.

9. It is an admitted position that in the written statement it has been admitted that Hemraj Mahto was the landlord and that has been tried to be withdrawn by way of filing the amendment petition at the belated stage.

10. So far as the judgment relied by Mr. Banerjee in the case of Manjur Mian @ Md. Manjur Alam (Supra) and in the case of Kole Oraon & Ors. (Supra), the court is in agreement with him, as it is well settled that if the amendment sought for will not change the nature of the ongoing suit, that amendment can be allowed at any stage and liberal view is required to be taken by the court, however, at the same time, the court is required to examine whether the nature of the suit is

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being changed or not.

11. What has been discussed hereinabove, it is clear case of taking away the admission by way of praying the said amendment, as the entire suit has been established on the ground that Hemraj Mahto was the landlord, through him they have received the right, title and interest.

12. In the case of Life Insurance Corporation of India (Supra) in para-70(iii)(ii), it has been held that by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side can be allowed.

13. What has been discussed hereinabove, it transpires that the amendment, as sought for, is against the guidelines issued by the Hon'ble Apex Court. Further in the amendment petition, it has not been disclosed that the petitioner / defendant was not knowing about the status of Hemraj Mahto and due diligence has also not been disclosed in filing the said petition.

14. In light of the above discussion, so far as the facts of the present case is concerned, it is not coming within the parameters of the judgment in the case of Usha Balashaheb Swami & Ors. Versus Kiran Appaso Swami & Ors., reported in (2007) 5 SCC 602, which has been considered by this court in C.M.P. No. 433 of 2023 (Idris Ansari & Ors. Versus Mokhtar Alam @ Mokhtar Ansari & Ors.) in allowing the petition, on which, lastly reliance has been placed by the learned counsel appearing for the petitioner.

15. In C.M.P. No. 1355 of 2023 as relied by the learned counsel appearing for the petitioner has also been decided in light of the facts of that case and in that case, considering the several judgments of Hon'ble Supreme Court, the court has found that the prejudice has not been caused to the petitioners, in view of that the said order was passed.

16. What has been discussed hereinabove, the facts of the

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present case is different and the case relied by Mr. Banerjee in C.M.P. No. 1355 of 2023 is not helping the petitioner. Further the due diligence is also lacking in filing the petition at the belated stage i.e. at the stage of argument, which is restricted in light of Order-VI Rule-17 of the CPC.

17. In view of the above, the court finds that there is no illegality in the impugned order, as such, this petition is dismissed.

(Sanjay Kumar Dwivedi, J.) Amitesh/-

[A.F.R.]