Jharkhand High Court
Ganesh Mahto vs Rajesh Mahto @ Rajeshwar Mahto on 15 April, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
[2025:JHHC:11456]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 993 of 2024
1. Ganesh Mahto, Aged about 80 years,
2. Kartik Mahto, Aged about 67 years, Both sons of
Late Gouri Mahto,
3. Sanichariya Devi, Aged about 58 years, Wife of
Late Basant Mahto
All Resident of Village & Post-Durgapur, P.S.
Kasmar, District Bokaro.
..... ... Petitioners
Versus
1. Rajesh Mahto @ Rajeshwar Mahto,
2. Parmeshwar Mahto,
Both sons of Late Gopal Mahto
3. Chanchala Devi, Wife of Late Laxman Mahto,
4. Sandeep Kumar, Son of Late Laxman Mahto,
5. Umila Devi, Wife of Late Gopal Mahto
All Resident of Village- Durgapur, Tola-
Lalmatiya, P.O. Durgapur, P.S.-Kasmar, District-
Bokaro.
..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Aditya Banerjee, Advocate.
For the Opposite Parties : Mrs. Pinky Kumari, Advocate.
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05/ 15.04.2025 Learned counsel appearing for the opposite parties submits
that the copy of the counter affidavit is already served upon the learned
counsel appearing for the petitioners, however, she has not been able to
file the same before the Registry, as the matter is already on Board.
2. In view of her such submission, let the counter affidavit,
filed on behalf of opposite parties be taken on record.
3. Heard learned counsel appearing for the petitioners and
learned counsel for the opposite parties.
4. This petition has been filed under Article 227 of the
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Constitution of India, wherein prayer has been made for setting aside
the order dated 08.08.2024, passed by the learned Civil Judge (Sr.
Div.)-II, Bermo at Tenughat, in Original Suit No. 86 of 2019, whereby
the petition dated 19.07.2024 filed under Order-VI, Rule-17 CPC filed
on behalf of the petitioners (plaintiffs) has been rejected by the learned
court.
5. Learned counsel appearing for the petitioners submits that
Original Suit No. 86 of 2019 was instituted for declaration of right, title
and interest over Schedule-D and E property. He submits that the
formal amendment was sought by way of filing a petition under Order-
VI Rule-17 CPC on 27.02.2024, which was rejected by the learned
court by order dated 21.03.2024. He submits that another petition was
filed for the different amendment on 19.07.2024, which has further
been rejected by the learned court by order dated 08.08.2024. He
further submits that the amendments, sought for, are formal in nature, in
spite of that the learned court has not allowed the same. On these
grounds, he submits that the impugned order may kindly be set aside.
6. Learned counsel appearing for the petitioners has relied in
the case of Varun Pahwa Versus Renu Chaudhary, reported in (2019)
15 SCC 628.
7. Learned counsel appearing for the opposite parties submits
that the same amendment has been sought in the earlier petition, which
was rejected by the learned court and subsequently the second petition
has been filed and the first rejection order was not challenged before
any higher court, in view of that, the said order has attained the finality.
8. From the records, it transpires that earlier a petition under
Order-VI Rule-17 CPC was filed on 27.02.2024, which was rejected by
the learned court by order dated 21.03.2024 and subsequently, second
petition was filed, which was further rejected by the learned court and
the said order is the subject matter of present petition. In both the
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petitions the amendments, sought for, are almost similar, in view of that
this court finds force in the argument of learned counsel appearing for
the opposite parties. In this regard, reference may be made to the case
of C.V. Rajendran v. N.M. Muhammed Kunhi, reported in (2002) 7
SCC 447, where in para-6, the Hon'ble Supreme Court has held as
follows:-
"6. We may add that Section 105 of the Code
of Civil Procedure, 1908 specifically provides
that any error, defect or irregularity in any
order affecting the decision of the case may
be set forth as a ground of objection in the
memorandum of appeal which may be
preferred against the original decree; orders
in the nature of amendment of pleadings; late
admission of documents at a later stage;
admission of additional evidence and the like
are orders interlocutory in nature which can
be challenged by raising a ground of
objection in the memorandum of appeal
which may be preferred against the original
decree. Sub-section (2) of Section 105 CPC
deals with an order of remand and provides
that notwithstanding the provisions of sub-
section (1), where any party aggrieved by an
order of remand from which an appeal lies
does not appeal therefrom, he shall thereafter
be precluded from disputing its correctness.
Here what is sought to be reagitated is not
really the order of remand but the order
deciding a germane issue which was allowed
to become final at an earlier stage of the
same suit. The principle of res
judicata applies as between two stages in the
same litigation so that if an issue has been
decided at an earlier stage against a party, it
cannot be allowed to be reagitated by him at
a subsequent stage in the same suit or
proceedings. This position is laid down
in Hope Plantations Ltd. v. Taluk Land
Board [(1999) 5 SCC 590] to which one of us
(Syed Shah Mohammed Quadri, J.) was a
party."
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9. In view of the above and considering that in the same
proceeding, the second amendment has been sought, which has already
been decided, in view of that the learned court has rightly passed the
said order. Further the case is already at the advance stage and it is
fixed for argument and even the due diligence has not been shown in
filing the said petition before the learned court.
10. So far as the judgment relied in the case of Varun Pahwa
(Supra), by the learned counsel appearing for the petitioners is
concerned, in that case the Hon'ble Supreme court has found that
mistake has inadvertently been made in drafting the plaint and in that
case the second petition is not the subject matter, as such, it is well
settled that the judgments are to be considered in the facts and
circumstance of each case. As such, the said judgment is not helping the
petitioner.
11. In view of the above facts, reasons and analysis, the court
finds that there is no illegality in the impugned order. As such, this
petition is dismissed.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
