Jharkhand High Court
Sahimuddin Miyan @ Sahim Miyan S/O Late ... vs Babu Tauhid Ansari S/O Babu Nabi Miyan on 18 February, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
C.M.P. No. 1015 of 2024
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Sahimuddin Miyan @ Sahim Miyan S/o Late Suleman Miyan,
aged about 74 years, resident of village, PO and PS - Herhanj,
District - Latehar .... Petitioner
-- Versus --
1. Babu Tauhid Ansari S/o Babu Nabi Miyan, residents of village,
PO and PS - Herhanj, District - Latehar
2. Surajdeo Prasad Yadav @ Surajdeo Yadav S/o Late Dhirat
Mahto, residents of village, PO and PS - Herhanj, District -
Latehar
3. Salamat Mian
4. Tahiyat Mian
Sl. No.3 and 4 are sons of Late Rahim Mian and resident of
village and PO - Chiru, PS - Herhanj, District - Latehar
.... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Jitesh Kumar, Advocate
For O.P. No.1 :- Mr. Shivam Kumar, Advocate
:- Mr. Vibhor Mayank, Advocate
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04/18.02.2025 Heard Mr. Jitesh Kumar, learned counsel appearing for
the petitioner and Mr. Shivam Kumar along with Mr. Vibhor Mayank,
learned counsel appearing for the opposite party No.1.
2. Notice upon the opposite party No.2 is deemed to be validly
served.
3. By order dated 27.11.2024 the notice upon the opposite
party Nos.3 and 4 has already been dispensed with by the co-
ordinate Bench as they are the proforma defendants.
4. This petition has been filed under Article 227 of the
Constitution of India for setting aside the order dated 13.08.2024
passed by learned Civil Judge (Sr. Division)-1st Latehar passed in
Misc. Civil Application No.63 of 2024 arising out of Original (Title)
Suit No.58 of 2018 whereby the learned Court has been pleased to
allow the application filed by the plaintiff under Order VI Rule 17 of
the CPC for amendment in the plaint.
5. Learned counsel appearing for the petitioner submits that
the Original Suit No.58 of 2018 under Section 26 of CPC was
instituted by the plaintiff/opposite party No.1 against the
defendants praying therein to declare the right, title, interest and
possession acquired by the plaintiff over the suit land through
registered Sale Deed No.672 dated 28.03.1985. He submits that a
petition has been filed at the stage of argument by the
plaintiff/respondent for amendment in the relief para that
possession of the plaintiff be confirmed over the suit land. He
submits that the said amendment was allowed by the learned Court
and that is not in accordance with law. He submits that the entire
nature of suit is being changed, as such the said order may kindly
be set aside. He further submits that the due diligence is also not
done by the plaintiff/respondent.
6. Learned counsel appearing for the opposite party No.1
submits that a formal amendment is sought to be made in the relief
portion and averments to that effect is already there in the plaint in
para 11, 14 and relief portion. He submits that by way of allowing
the said amendment the nature of suit is not being changed. He
relied in the judgment of Hon'ble Supreme Court in the case of Life
Insurance Corporation of India versus Sanjeev Builders
Private Limited and Another reported in (2022) 16 SCC 1,
wherein at paragraph No.71.10 it has been held as under :-
71.10) Where the amendment changes the nature of the suit
or the cause of action, so as to set up an entirely new case,
foreign to the case set up in the plaint, the amendment must
be disallowed. Where, however, the amendment sought is
only with respect to the relief in the plaint, and is predicated
on facts which are already pleaded in the plaint, ordinarily
the amendment is required to be allowed.
7. Looking into the plaint annexed with the CMP, it transpires
that averment to that effect is there in paragraph No.11 and 15 that
the plaintiff is in possession of the property. In the relief portion also
the prayer is made that the declaration of right, title, interest and
confirmation of possession by way of said amendment only it has
been tried to be added in the relief portion to confirm the plaintiff
possession over the suit land.
8. In light of the above, it transpires that only a formal
amendment is sought to be made in the plaint and in the main
prayer.
9. In the case of Life Insurance (supra) relied by learned
counsel appearing for the opposite party in paragraph No.71.9 it has
been further held that the delay in applying for amendment alone is
not a ground to disallow the prayer. Where the aspect of delay is
arguable, the prayer for amendment could be allowed and the issue
of limitation framed separately for decision can be made and further
to avoid the multiplicity of the litigation, if the prayer is formal in
nature that is required to be allowed.
10. 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.)
Sangam/
A.F.R.
