Jharkhand High Court

Manjur Mian @ Md. Manjur Alam vs Mustakim Mian Son Of Ismail Mian on 15 January, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                   IN THE HIGH COURT OF JHARKHAND, RANCHI
                            C.M.P. No. 693 of 2023
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Manjur Mian @ Md. Manjur Alam, aged about 62 years son of Late Safir Mian, resident of Village - Dumardiha, PO - Sapamaran, PS - Dhanwar, District - Giridih .... Petitioner

-- Versus --

1. Mustakim Mian son of Ismail Mian

2. Md. Kabir son of Ismail Mian

3. Md. Hasim son of Ismail Mian,

4. Md. Aziz son of Md. Noor Mohammad

5. Md. Jubrail son of Md. Noor Mohammad, all resident of village -

Dumardiha, PO - Sapamaran, PS - Dhanwar, District - Giridih .... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. P.K. Mukhopadhyay, Advocate :- Mr. S.K. Murtty, Advocate For the O.Ps. :- Mr. Bhaiya Vishwajeet Kumar, Advocate :- Mr. Pranabesh Kumar Paul, Advocate

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09/15.01.2025 Heard learned counsel appearing for the petitioner and

learned counsel appearing for the opposite parties.

2. This petition has been filed under Article 227 of the

Constitution of India challenging the order dated 26.04.2023 passed

by learned Additional Munsif - XX, Giridih in Original Suit No.173 of

1999 whereby the amendment petition dated 13.02.2020 filed by

the plaintiffs under order VI Rule 17 of the CPC for amendment of

the plaint has been allowed.

3. Learned counsel appearing for the petitioner submits that

the petitioner is one of the substituted defendants of the Original

Suit No.173 of 1999. He further submits that the said suit was filed

for declaring the Raiyati Kaimi Occupancy right on the suit lands and

for confirmation and in case they are dispossessed during the

pendency of the suit they be put in khas possession thereon and

the interest pendente lite is also claimed. He then submits that the

petitioner is one of the substituted defendants in Original Suit

No.173 of 1999 and on receipt of notice had appeared in this case

and filed written statement jointly with the other defendants stating

therein that the defendants are having right, title, interest and

possession over the suit property and plaintiffs have no knowledge

of the lands in question and the plaintiffs are claiming the lands by

virtue of the forged paper and the suit may kindly be dismissed. He

submits that the said suit is at the stage of argument and at belated

stage the petition under order 6 Rule 17 of CPC dated 13.02.2020

has been filed and the learned Court has been pleased to allow the

same and according to him the nature of the amendment is

changing the entire nature of the suit, as such wrongly the said

petition was allowed by the learned Court. He submits in view of

that the said order may kindly be set aside.

4. Learned counsel appearing for the opposite party Nos.1 to 3

submits that a formal amendment was sought and nature of the suit

is not being changed and in view of that the learned Court has

rightly passed the said order. He submits at any stage, the

amendment can be allowed to avoid the multiplicity of the litigation.

He further submits that identical suit is pending between the parties

being Title Suit No.167 of 1999 in which almost similar amendment

was allowed by order dated 26.04.2023 which was challenged by

the petitioner herein in C.M.P. No.692 of 2023 and the co-ordinate

Bench of this Court has rejected the said CMP by order dated

12.01.2024. He submits in both the suits, the petitioner defendant

are same and this defendant has challenged the order dated

26.04.2023 in CMP No.692 of 2023. He submits that this petition

may kindly be dismissed.

5. The plaintiff of O.P. Nos.1 to 3 has filed the petition under

order VI Rule 17 of CPC for following amendment :-

SCHEDULE - A - Proposed Amendment

I) Learned court may be pleased to allow the plaintiffs to write following statements after the end of para No.14 of the plaint after the words Revision No.46 of 1996 and full stop as follows :-

Right, title, interest and possession of the plaintiffs on the suit land exists and the same cannot be said have been lost in view of the orders of the Commissioner, Hazaribagh. Defendants did not earn and acquire any right, title, interest and possession on the suit land in view of the orders of Commissioner. The orders of Revenue authorities are not binding on the learned Civil Court. The judgment of the Civil Court is binding on the Revenue Court.

ii) Learned Court may be pleased to allow the plaintiffs to create a new paragraph No.15(1), after the end of para No.15 of the plaint, and to allow the plaintiffs to write following statements after the word antedated and full stop as follows :-

The alleged and so-called Donor named, Smt. Ayan Kumari, or any other person was never the owner of the land measuring 9.65 acres in the suit plot and nobody had donated

the aforesaid area of the land in suit plot involved in this suit, in favour of Bhudan Yagna Committee or to Acharya Vinoba Bhave. The alleged Donor named, Smt. Ayan Kumari, never made any written declaration in writing to the aforesaid alleged Donne at any period. The land is recorded in the Records of Right as Gair - Majuria Lanad, the part of which is Khas whereas, the part is Aam Land, and no Daan Patra was issued and delivered in favour of Bhudan Yagna Committee, in respect of the suit land by anyone, whosoever it may be he/she. There was no settlement of the land measuring an area of 9.65 acres in favour of sons of Ahdil Mian and Sizman Mian by means of Bhudan Parcha, allegedly granted in the year 1956, for alleged area measuring 9.65 acres.

iii) Learned Court may be pleased to allow the plaintiffs to create paragraph No.15(2), after the end of newly created para No.15(1) and to allow the plaintiffs to write following statements as follows :-

No revenue officer had made any publication in the prescribed manner inviting written objection there to within the prescribed period of 30 days from the date of publication. There was no enquiry by any competent authority regarding the right, title and competency of the alleged Donor, if any, to make the alleged Daan Patra. It was never confirmed by any competent authority. The suit land was never transferred and vested in the Bhudan Yagna Committee. None of the defendants was landless persons during the relevant period.

iv) Learned court may be pleased to allow the plaintiffs to write following statements in a newly created relief No. A (i) in para No.19 of the plaint, as follows:-

On adjudication, Decree be passed holding and declaring that the alleged Bhudan settlement and issuance of alleged and purported Bhudan Parchas in favour of the ancestors of the defendants are illegal, void, null & void, nullity, void-ab-initio, inoperative and the same is not binding on and upon the plaintiffs.

6. A rejoinder to the said petition was filed by the petitioner

contained in Annexure-2 on the ground that the same amendment

is not fit to be allowed after such a long delay that too when the

case has been posted for argument and it has been further stated

by way of the said petition, if it is allowed the nature of the suit will

change.

7. By the impugned order, the learned Court after considering

the rival submission of both the parties has allowed the amendment

considering that amendment will be relevant in determining the real

question in controversy between the parties and further, he has held

that the amendment sought to be made to the real controversy for

execution of lease, as such the said petition was allowed by order

dated 26.04.2023 which is challenged in the present CMP under

Article 227 of the Constitution of India.

8. For the shake of brevity, the order VI Rule 17 of CPC which

is quoted herein :-

"17. Amendment of pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

9. In the light of above provision, it is crystal clear that the

said provision is made to do substantial justice and in case certain

things or documents could not have been brought on record either

in the plaint or in the written statement, the same can be brought

on record by way of seeking leave from the Court concerned by

filing a petition under order VI Rule 17 of CPC.

10. It is well settled that grant of application for amendment be

subject to certain conditions and that has been considered by

Hon'ble Supreme Court in the case of Rajkumar Gurawara vs.

S.K. Sarwagi and Company Private Limited and Anr. (2008)

14 SCC 364 wherein, at paragraph No.18, it has been held 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."

11. The above view of Hon'ble the Supreme Court has been

further reiterated in the case of Revajeetu Builders and

Developers vs. Narayanaswamy and sons and Ors. reported

in (2009) 10 SCC 84 wherein, at paragraph No.63, it has been

held 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."

12. In light of above two judgments of Hon'ble the Supreme

Court, it is crystal clear that the amendment can be allowed in the

plaint or written statement and only condition is that the nature of

the suit be not changed.

13. It is further well settled that once admission is there in the

pleading or written statement and if it is accrued in favour of either

of the parties and by way of filing amendment the parties will not

be allowed to rescinded by filing amended petition as has been held

by Hon'ble the Supreme Court in the case of Ashutosh

Chaturvedi versus Prano Devi @ Parani Devi & Ors, reported

in (2008) 15 SCC 610 wherein at paragraph No.16 it has been

held as under :-

"16. In T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board [(2004) 3 SCC 392] this Court upon taking into consideration its earlier decisions in L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357 : 1957 SCR 438] held that as a rule, the court will decline to allow amendment for a fresh suit on the amended claim if it had become barred by limitation on the date of application. (See also State Bank of Hyderabad v. Town Municipal Council [(2007) 1 SCC 765 :

(2006) 13 Scale 332] .)"

14. Further it is well settled that even if the limitation is there in

the interest of justice the discretion of such power can be exercised

by the Court as has been held in the case of Revajeetu Builders

and Developers versus Narayanaswamy and sons and Ors.

(supra) wherein at paragraph No.39 it has been held as under :-

39. The rule, however, is not a universal one and under certain circumstances, such an amendment may be allowed by the court notwithstanding the law of limitation. The fact that the claim is barred by the law of limitation is but one of the factors to be taken into account by the court in exercising the discretion as to whether the amendment should be allowed or refused, but it does not affect the power of the court if the amendment is required in the interests of justice (see Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] and Arundhati Mishra v. Ram Charitra Pandey [(1994) 2 SCC 29] )."

15. In the case of Surender Kumar Sharma versus Makhan

Singh reported in (2009) 10 SCC 626 wherein it has been held

that the amendment can be allowed at the belated stage also and

that needs to be decided seeing whether by allowing the

amendment the real controversy between the parties may be

resolved or not and that has been made in paragraph No.5 of the

said judgment which is as under:-

"5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment."

16. It has been held by Hon'ble Supreme Court in the case of

Mount Mary Enterprises versus Jivratna Medi Treat Private

Limited reported in (2015) 4 SCC 182 that the amendment

application should be normally granted unless by virtue of the

amendment nature of the suit is changed or some prejudice is

caused to the defendant and that has been made in paragraph No.7

and 10 of the said judgment which is as under :-

"7. In our opinion, as per the provisions of Order 6 Rule

17 of the Civil Procedure Code, the amendment application should be normally granted unless by virtue of the amendment nature of the suit is changed or some prejudice is caused to the defendant. In the instant case, the nature of the suit was not to be changed by virtue of granting the amendment application because the suit was for specific performance and initially the

property had been valued at Rs 13,50,000 but as the market value of the property was actually Rs 1,20,00,000, the appellant-plaintiff had submitted an application for amendment so as to give the correct value of the suit property in the plaint.

10. With regard to the amendment of the plaint, the following observation has been made by this Court in North Eastern Railway Admn. v. Bhagwan Das [(2008) 8 SCC 511] :

(SCC p. 517, para 16) "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363 : (1957) 1 SCR 595] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.

17. The above are the law of the land with regard to allowing of

amendment petition in the suit.

18. The admitted case of the parties is here that the plaintiff

instituted a suit for declaration of Kayami rights and handover the

possession. It is further admitted possession that the suit has

proceeded and now it is at the stage of argument and at that stage

the said petition was filed wherein aforesaid amendment as quoted

in paragraph No.5 of this judgment was sought. The first

amendment was with regard to the passing of the orders by the

Commissioner and if such a position was there the said amendment

is legally valid and in view of the well settled position that the order

of revenue authorities cannot be said to be the basis for declaration

of right and title, however, that order can be treated as an evidence

for consideration of right and title, as such that amendment is not

going to change the nature of the suit. By way of order of the

revenue authority, the right title interest of any parties cannot be

taken away.

19. The second amendment and the third amendment are

based upon the title having been claimed by the defendant, who is

the petitioner herein, on the basis of settlement of land. The

statement has been made that the land which admittedly is part of

the Gair-Majuria aam and the claim of the settlement is based upon

the aforesaid as donated under the Bhudan Yagna Act. In the light

of second and third amendment, the statutory provision under the

said Act i.e. Bhudan Yagna Act is that if the land has been donated

under the Bhudan Yagna Act then the same is to be donated in

favour of the newly constituted committee. The committee is

required to issue dan patran and then only the follow up action the

land can be settled by the competent authority. In light of these two

amendments are also based upon the legal possession and in view

of that it cannot be said that incorporating these two amendments,

the nature of the suit will be changed.

20. In this background, the learned Court has considered the

said petition and allowed the same and the said order of the learned

Court is on cogent reason which cannot be said to suffer from any

error.

21. This petition has been filed under Article 227 of the

Constitution of India and it is well settled that the High Court is

having limited jurisdiction only to correct the error as has been held

by Hon'ble Supreme Court in the case of Shalini Shyam Shetty

versus Rajendra Shankar Patil, reported in (2010) 8 SCC