Jharkhand High Court
Shyamal Kumar Pasari vs Jamuna Ben on 27 January, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
C.M.P. No. 945 of 2022
----
Shyamal Kumar Pasari, son of Late Balabux Pasari, aged about 92
years, resident of Mohalla - Gandhitola, PO and PS - Chaibasa
Town, Chaibasa, District - West Singhbhum .... Petitioner
-- Versus --
1. Jamuna Ben, wife of Babulal Patel
2. Ramesh Kumar Patel, son of Babulal Patel
3. Harilal Patel, son of Babulal Patel
4. Purusottam Patel, son of Babulal Patel
5. Mohan Lal Patel, son of Late Ladha Bhai Hanshraj Patel
6. Mani Lal Patel, son of Late Ladha Bhai Hanshraj Patel
All are residents of Tata Road, PO and PS - Chaibasa Town,
Chaibasa, District - West Singhbhum .... Opposite Parties
----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---
For the Petitioner :- Mr. Vibhor Mayank, Advocate
:- Mr. Tarun Kr. Mahato, Advocate
:- Mr. Shivam Kumar, Advocate
For the O.Ps :- Mr. Rahul Kr. Gupta, Advocate
----
05/27.01.2025 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 for quashing of the order dated 20.09.2022
passed by learned Additional Civil Judge (Junior Division), West
Singhbhum at Chaibasa in Original Suit No.03 of 2020
corresponding to Misc. Civil Application No.06 of 2020 whereby the
petition under Order VI Rule 17 read with Section 151 of the Code
of Civil Procedure, 1908 for making necessary amendment in the
plaint has been rejected. Further prayer is made to allow the
petition to make out correction in the plaint.
3. Learned counsel appearing for the petitioner submits that
the Original Suit No.03 of 2020 was instituted for recovery of
possession and declaring the right title interest which was decided
by the judgment/decree dated 23.03.2010 which was challenged by
the defendants in the Title Appeal No.07 of 2010 and the said was
decided by the judgment dated 22.03.2017 whereby the
judgment/decree was set aside and the suit was remanded back to
decide afresh by the learned trial court. He submits that a formal
prayer was made by way of filing the said petition under Order VI
Rule 17 of the CPC for correction of the area of the land in question,
however, the plot number and khata number are similar. He submits
that the nature of the suit will not be changed if the said prayer is
allowed, however, the learned Court has rejected the same.
4. Mr. Rahul Kumar Gupta, learned counsel appearing for the
opposite parties submits that the suit was already tried and the
appeal was preferred which was remanded back and after remand
the said prayer made belatedly and rightly no liberty was allowed by
the learned Court. He submits that there is no illegality in the
impugned order and the same may kindly be dismissed.
5. Admittedly, the suit was instituted for declaration of right
title interest to handover the possession which was decided by the
judgment/decree dated 23.03.2010 and the same was challenged
before the appellate court in Title Appeal No.07 of 2010 and the
said was decided by the judgment dated 22.03.2017 whereby the
judgment/decree was set aside and the suit was remanded back to
decide afresh by the learned trial court.
6. Petition under Order VI Rule 17 was filed for correction of
the area of property in question, however, the plot number and
khata number has not been sought to be changed only the area is
sought to be corrected in the plaint. If the nature of suit is not
being changed by way of formal amendment that can be allowed
considering that it was only to rectify the absence of material
particulars in document.
7. Reference may be made to 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.62 and 71.8, it has been held as under :-
62. In the case of B.K. Narayana Pillai v. Parameswaran
Pillai & Anr., (2000) 1 SCC 712 relying upon the cases of A.K.
Gupta (supra) and Ganesh Trading Co. (supra), this Court held
that the court should adopt a liberal approach in the matter of
amendment and only when the other side had acquired any
legal right due to lapse of time, the amendment should be
declined. It has been held as follows:
".....All amendments of the pleadings should be allowed
which are necessary for determination of the real controversies
in the suit provided the proposed amendment does not alter or
substitute a new cause of action on the basis of which the
original lis was raised or defence taken. Inconsistent and
contradictory allegations in negation to the admitted position of
facts or mutually destructive allegations of facts should not be
allowed to be incorporated by means of amendment to the
pleadings. Proposed amendment should not cause such
prejudice to the other side which cannot be compensated by
costs. No amendment should be allowed which amounts to or
results in defeating a legal right accruing to the opposite party
on account of lapse of time. The delay in filing the petition for
amendment of the pleadings should be properly compensated
by costs and error or mistake which, if not fraudulent, should
not be made a ground for rejecting the application for
amendment of plaint or written statement."
71.8 Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars in the
plaint.
8. In view of the above and further coming to the said
amendment sought by the petitioner it transpires that only a formal
amendment was needed and to avoid the multiplicity of the
litigation, the learned Court was required to allow the said
amendment, however, the said was rejected.
9. In view of the above, the order dated 20.09.2022 passed by
learned Additional Civil Judge (Junior Division), West Singhbhum at
Chaibasa in Original Suit No.03 of 2020 corresponding to Misc. Civil
Application No.06 of 2020 is hereby set aside and the petition filed
under Order VI Rule 17 of the CPC by the petitioner is allowed.
10. The learned Court will allow the petitioner to amend the
plaint in the light of the said petition, however, the rebuttal right of
the defendants will be there and they will be allowed to rebut the
same.
11. This petition is allowed in above terms and disposed of.
(Sanjay Kumar Dwivedi, J.)
Sangam/
A.F.R.
