Jharkhand High Court
Amit Kumar vs Anup Pastor on 22 April, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
2025:JHHC:12151
IN THE HIGH COURT OF JHARKHAND, RANCHI
C.M.P. No. 1078 of 2024
----
Amit Kumar, aged about 38 years, son of Late Gopi Krishna
Sahay, Resident of Shastri Nagar, PO and PS - Giridih (Town),
District - Giridih, Jharkhand .... Petitioner
-- Versus --
1. Anup Pastor, son of Late Pyarelal, Resident of Pachamba
Mission, near Khel Maidan, PO and PS - Pachamba, District -
Giridih, Jharkhand
2. Deepa Tekriwal, wife of Sanjay Tekriwal, Resident of Jogsar, PO
and PS - Jagdishpur, District - Bhagalpur (Bihar)
3. Shweta Sinha, wife of Rajan Kumar, resident of Shastri Nagar,
PO and PS - Giridih (Town), District - Giridih, Jharkhand
.... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---
For the Petitioner :- Mr. Anand Kr. Sinha, Advocate
:- Mr. Abhishek Sharan, Advocate
For the O.P. No.1 :- Mr. Pradyumna Poddar, Advocate
----
06/22.04.2025 Heard learned counsel appearing for the petitioner
and learned counsel appearing for the opposite party No.1.
2. The co-ordinate Bench of this Court has dispensed with the
notice upon the opposite party Nos.2 and 3 by order dated
19.12.2024 as they are the proforma opposite parties.
3. This petition has been filed under Article 227 of the
Constitution of India for setting aside of the order dated 05.08.2024
passed in Misc. Civil Application No.78 of 2023 arising out of
Original Suit No.13 of 2022 passed by learned Civil Judge (Senior
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Division)-II, Giridih by which the petition dated 31.05.2023 filed by
the petitioner under Order 6 Rule 17 of Code of Civil Procedure for
amendment has been partly allowed and the rest of the
amendment was not allowed.
4. Learned counsel appearing for the petitioner submits that
the petitioner herein who was the plaintiff instituted Original Suit
No.13 of 2022 before learned Sub-Judge - I, Giridih in respect of
the land of Khata No.7, Plot No.733, area 25 decimals within Mouza
Boro, Thana No.91 presently P.S. Pachamba, District - Giridih with a
prayer for adjudication for declaring the petitioner and others right,
title, interest and possession over the said suit property and further
prayer to confirm the possession of the petitioner and others and if
the petitioner is dispossessed from the suit property during the
pendency of the suit, the khas physical possession be restored and
recovered the same through the process of the court. He further
submits that in the said petition, petition under Order 6 Rule 17 of
the CPC has been filed which has been allowed partly by the
learned Court. He then submits that so far other amendment was
concerned the learned Court has been pleased to reject the same
holding that the nature of the suit will change. He also submits that
the amendment was formal in nature and the learned Court has
erred in rejecting the rest of the amendment. He submits that the
courts are very lenient in allowing the amendment petition, so that
the suit be decided in its right perspective. To buttress this
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argument, he relied in the judgment of Hon'ble Supreme Court in
the case of Rajesh Kumar Aggarwal & Ors. versus K.K. Modi
& Ors. reported in 2006 (4) SBR 252. On the same point, he
further relied in the case of Surender Kumar Sharma versus
Makhan Singh reported in IV (2009) CLT 101 (SC) and on the
same point he further relied in the case of Shikharchand Jain
versus Digamber Jain Praband Karini Sabha and Others
reported in (1974) 1 SCC 675.
5. Relying on the above judgment, learned counsel appearing
for the petitioner submits that in all the judgments the object of the
rule is that Courts should try the merits of the case that come
before them and should, consequently, allow all amendments that
may be necessary for determining the real question in controversy
between the parties provided it does not cause injustice or prejudice
to the other side. He submits that the learned Court has not
followed the above principles laid down by Hon'ble Supreme Court
and wrongly rejected the petition and in view of that the same my
kindly be set aside.
6. Per contra, learned counsel appearing for the opposite party
No.1 opposes the prayer and submits that even the plaint is not
annexed with the C.M.P, so that contents may be looked into to find
out as to whether nature of the suit will change or not. He further
submits that so far the formal prayer of amendment is concerned
that has already been allowed by the learned Court. By way of
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referring to the amendment petition, he submits that particularly
amendment Nos. 6 to 11 the burden has been tried to be set upon
the opposite party. He submits that in the said suit the opposite
parties have already appeared and filed their defence and after
filing of the written statement that is trying to change. He further
submits that the averments to that effect is not even made to the
plaint and the due diligence is not there. On this ground, he submits
that the learned Court has rightly passed the order.
7. It is an admitted position that the suit in question was
instituted by the petitioner herein for declaration of right, title and
interest. The suit has proceeded and the defendants have appeared
and filed their written statement. So far amendment No.I is
concerned, it was only to the effect of asserting the word deceased,
amendment No.II was also formal with regard to Madari Mian, who
was deceased, amendment No.III was also with respect to sole,
absolute and exclusive owner and possessor of the aforesaid land.
All these amendments the learned Court has found that is formal in
nature and has been pleased to allow the same and the Court finds
that it has been rightly done by the learned Court as there is certain
words to be inserted therein and in view of that the nature of the
suit was not being changed. Considering that the learned Court has
allowed that only certain words are required to be changed so far
the rest of the amendment is concerned that is with regard to not to
challenge of Register II assert the name of Anchal Adhikar and the
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demarcation was illegal etc. the learned court has found that will
changed the nature of the suit.
8. It is well settled that if defendants appeared filed the
written statement and something has been admitted in the plaint,
the withdrawal of the same will prejudice the case of the
defendants and the admission made herein by way of said
amendment sought to be withdrawn by the plaintiff by way of rest
of the amendments and in view of that the learned Court has been
pleased to reject the same. The liberty with regard to allowing of
the amendment has been held in many cases and it is well settled
that where the amendment is not changing the nature of the suit or
cause of action, the amendment can be allowed. Delay in filing the
amendment petition was also not a ground to reject the
amendment to decide the lis to attend the finality but at the same
time if the amendment sought to be raised with regard to the time
bar claim that is a prime factor of consideration as well as when the
amendment changes the nature of the suit or cause of action so as
to setup and entirely new case fallen to the case setup in the plaint
or not, the amendment must decide. On these parameters, the
amendment petitions are being considered by the Courts.
9. Coming to the facts of the present case, the burden has
been tried to shift upon the defendants after filing of the written
statement and further plaint is not annexed with the CMP so that
this Court may be able to appreciate what has been stated in the
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plaint and what main facts have been brought in the record.
10. So far judgments relied by learned counsel appearing for
the petitioner are concerned, this Court is in agreement and it is
well settled that the case law are applicable in the facts and
circumstances of each case.
11. What has been discussed here-in-above with regard to the
amendment which has not been allowed that is not coming within
the parameters of the judgments relied by the learned counsel
appearing for the petitioner. The Court finds that there is no
illegality in the impugned order, as such this petition is dismissed.
(Sanjay Kumar Dwivedi, J.)
Sangam/
A.F.R.
