Jharkhand High Court
Uttam Maity Aged About 54 Years Son Of ... vs ) Anjana Mahatain D/O Sri Balaram Mahato on 11 March, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
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C.M.P. No. 401 of 2024
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UTTAM MAITY AGED ABOUT 54 YEARS SON OF LATE DHARNIDHAR MAITY
RESIDENT OF HOUSE NO.2 ULIYAN MIAN ROAD, PO+PS KADMA, JAMSHEDPUR,
DISTRICT EAST SINGHBHUM, JHARKHAND .... Petitioner/Defendant No.13.
-- Versus --
1) ANJANA MAHATAIN d/o SRI BALARAM MAHATO
Address - R/O SANGSAD MARG OLD SONARI PO AND PS SONARI TOWN
JAMSHEDPUR DIST EAST SINGHBHUM JHARKHAND
2) BALARAM MAHATO son of LATE RATAN MAHATO
R/O SANSAD MARG OLD SONARI PO AND PS SONARI TOWN JAMSHEDPUR
DIST EAST SINGHBHUM JHARKHAND
3) SANTU MAHATO son of SRI BALARAM MAHATO
R/O SANSAD MARG OLD SONARI PO AND PS SONARI TOWN JAMSHEDPUR
DIST EAST SINGHBHUM JHARKHAND
4) KANCHAN MAHATO SON OF BALARAM MAHATO
R/O SANSAD MARG OLD SONARI PO AND PS SONARI TOWN JAMSHEDPUR
DIST EAST SINGHBHUM JHARKHAND
5) RAKESH MAHATO son of BALARAM MAHATO
R/O SANSAD MARG OLD SONARI PO AND PS SONARI TOWN JAMSHEDPUR
DIST EAST SINGHBHUM JHARKHAND
6) RAMU MAHATO son of BALARAM MAHATO
R/O SANSAD MARG OLD SONARI PO AND PS SONARI TOWN JAMSHEDPUR
DIST EAST SINGHBHUM JHARKHAND
7) BILASHI MAHATANI WIFE OF LATE LAKHI CHARAN MAHATO
R/O V/1 KADMA VIEW COLONY ROAD NO 7 EXTENSION ROAD PO AND PS
SONARI TOWN JAMSHEDPUR DIST EAST SINGHBHUM JHARKHAND
8) GURU CHARAN MAHATO SON OF LATE LAKHI CHARAN MANATO
R/O V/1 KADMA VIEW COLONY ROAD NO 7 EXTENSION ROAD PO AND PS
SONARI TOWN JAMSHEDPUR DIST EAST SINGHBHUM JHARKHAND
9) AMAR MAHATO SON OF LATE LAKHI CHARAN MAHATO
R/O V/1 KADMA VIEW COLONY ROAD NO 7 EXTENSION ROAD PO AND PS
SONARI TOWN JAMSHEDPUR DIST EAST SINGHBHUM JHARKHAND
10) ANANTA MAHATO SON OF LATE LAKHI CHARAN MAHATO
R/O V/1 KADMA VIEW COLONY ROAD NO 7 EXTENSION ROAD PO AND PS
SONARI TOWN JAMSHEDPUR DIST EAST SINGHBHUM JHARKHAND
11) PURNIMA MAHATANI D/O LATE LAKHI CHARAN MAHATO
R/O V/1 KADMA VIEW COLONY ROAD NO 7 EXTENSION ROAD PO AND PS
SONARI TOWN JAMSHEDPUR DIST EAST SINGHBHUM JHARKHAND
12) KARUNA MAHATANI D/O LATE LAKHI CHARAN MAHATO
W/O MADAN MAHATO R/O VILL VALKADIH PO TUMUNG PS RAJNAGAR DIST
SERAIKELLA KHARSAWAN JHARKHAND
13) PINKEY MAHATANI D/O LATE LAKHI CHARAN MAHATO
R/O KOPALI PO MANGO PS MGM MANGO TOWN JAMSHEDPUR DIST EAST
SINGHBHUM JHARKHAND
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner(s) : Mr. Abhishek Kumar Dubey, Advocate
For the Opposite Parties No.1 : Mr. Yudhishthir Mahato, Advocate
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07/11.03.2025 Heard the learned counsel for the petitioner as well as the learned
counsel appearing on behalf of the Opposite parties no.1 and service of notice
on behalf of the rest of the opposite parties has been dispensed with as they
are found to be formal O.Ps.
2. This petition has been filed under Article 227 of the Constitution of India
wherein the prayer has been made for setting aside the order dated 03.02.2024
passed by learned Civil Judge, Senior Division-IV, Jamshedpur in Original Suit
No.162 of 2010 whereby the petition filed by the plaintiff/O.P.No.1 under Order
VI Rule 17 CPC seeking amendment in the suit has been allowed by the learned
court at the time of final argument of the suit.
3. Mr. Abhishek Kumar Dubey, the learned counsel appearing on behalf of
the petitioner /defendant submits that the Original Suit No.162 of 2010 was
instituted by the plaintiff /O.P.No.1 in the court of learned Sub Judge-I
Jamshedpur in seeking declaration of registered sale deed no.3961 dated
22.5.2010 was executed by the O.P.No.2 in favour of the petitioner/defendant
no.3 as void. He submits that after notice, the defendants and others have
appeared and filed their written statement and suit is of the year 2010 and it
has proceeded further and reached at the stage of argument and at that stage,
the petition under Order VI Rule 17 CPC was filed for amendment with a prayer
for recovery of possession be added in the event of plaintiff be dispossessed the
petitioner or his representative. He submits that the same is barred by more
than 13 years. He further submits that due diligence is not shown in light of
proviso of Order VI Rule 17 CPC and in view of that the learned court has erred
in allowing the said petition. He relied in the case of Vidyabai and Others v.
Padmalatha and Another reported in(2009) 2 SCC 409 and he refers to
paragraph no.10 and 11 which are quoted below:
"10. By reason of the Civil Procedure Code
(Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter
alia inserted a proviso to Order VI Rule 17 of the Code, which
reads as under: "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." It is couched in a mandatory form. The court's jurisdiction
to allow such an application is taken away unless the conditions
precedent therefor are satisfied, viz., it must come to a
conclusion that in spite of due diligence the parties could not
have raised the matter before the commencement of the trial.
8. From the order passed by the learned Trial Judge, it
is evident that the respondents had not been able to fulfill the
said pre-condition. The question, therefore, which arises for
consideration is as to whether the trial had commenced or not.
In our opinion, it did. The date on which the issues are framed is
the date of first hearing. Provisions of the Code of Civil Procedure
envisage taking of various steps at different stages of the
proceeding. Filing of an affidavit in lieu of examination in chief of
the witness, in our opinion, would amount to 'commencement of
proceeding'."
4. On the same line, he further relied in the case of Revajeetu Builders
and Developers v. Narayanaswamy and Sons and Others reported in
(2009) 10 SCC 84 and refers to paragraph no.63 which is quoted below:
"63. On critically analyzing 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 im- perative for proper and effective adjudication
of the case? (2) Whether the application for amend- ment
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 multi-
ple litigation; (5) Whether the proposed amendment con-
stitutionally 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. 3/12/25, 11:08 AM Revajeetu Builders &
Developers VS Narayanaswamy & Sons. These are some of
the important factors which may be kept in mind while
dealing with application filed under Order VI Rule 17. These
are only illustrative and not exhaustive."
5. He further relied in the case of M. Revanna v. Anjanamma (Dead)
By Legal Representatives and Others reported in (2019) 4 SCC 332 and
referred to paragraph no.7 which is quoted below:
7. Leave to amend may be refused if it introduces a
totally different, new and inconsistent case, or challenges the
fundamental character of the suit. The proviso to Order VI Rule
17 of the CPC virtually prevents an application for amendment
of pleadings from being 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 the trial. The proviso, to
an extent, curtails absolute discretion to allow amendment at
any stage. Therefore, the burden is on the person who seeks an
amendment after commencement of the trial to show that in
spite of due diligence, such an amendment could not have
been sought earlier. There cannot be any dispute that an
amendment cannot be claimed as a matter of right, and under
all circumstances. Though normally amendments are allowed
in the pleadings to avoid multiplicity of litigation, the Court
needs to take into consideration whether the application for
amendment is bona fide or mala fide and whether the
amendment causes such prejudice to the other side which
cannot be compensated adequately in terms of money."
6. He further relied in the case of Basavaraj v. Indira and Others
reported in (2024) 3 SCC 705 and refers to paragraph nos.10,12 and 14
which are quoted below:
"10. Proviso to Order VI Rule 17 CPC provides 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. In the case in hand,
this is not even the pleaded case of respondents No. 1 and 2
before the Trial Court in the application for amendment that
due diligence was there at the time of filing of the suit in not
seeking relief prayed for by way of amendment. All what was
pleaded was oversight. The same cannot be accepted as a
ground to allow any amendment in the pleadings at the fag
end of the trial especially when admittedly the facts were in
knowledge of the respondents No. 1 and 2/plaintiffs.
12. This Court in M. Revanna v. Anjanamma (Dead)
by legal representatives and others, (2019) 4 SCC 332 opined
that an application for amendment may be rejected if it seeks
to introduce totally different, new and inconsistent case or
changes the fundamental character of the suit. Order VI Rule
17 C.P.C. prevents an application for amendment after the trial
has commenced unless the Court comes to the conclusion that
despite due diligence the party could not have raised the issue.
The burden is on the party seeking amendment after
commencement of trial to show that in spite of due diligence
such amendment could not be sought earlier. It is not a matter
of right. Paragraph No. 7 thereof is extracted below : "7. Leave
to amend may be refused if it introduces a totally different,
new and inconsistent case, or challenges the fundamental
character of the suit. The proviso to Order 6 Rule 17 CPC
virtually prevents an application for amendment of pleadings
from being 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 the trial. The proviso, to an extent, curtails
absolute discretion to allow amendment at any stage.
Therefore, the burden is on the person who seeks an
amendment after commencement of the trial to show that in
spite of due diligence, such an amendment could not have
been sought earlier. There cannot be any dispute that an
amendment cannot be claimed as a matter of right, and under
all circumstances. Though normally amendments are allowed
in the pleadings to avoid multiplicity of litigation, the court
needs to take into consideration whether the application for
amendment is bona fide or mala fide and whether the
amendment causes such prejudice to the other side which
cannot be compensated adequately in terms of money."
(emphasis supplied)
14. This Court in Revajeetu's case (supra)
enumerated the factors to be taken into consideration by the
court while dealing with an application for amendment. One of
the important factor is as to whether the amendment would
cause prejudice to the other side or it fundamentally changes
the nature and character of the case or a fresh suit on the
amended claim would be barred on the date of filing the
application."
7. Relying on the above judgments, he submits that the guidelines have
been issued in those judgments and if the amendment causes prejudice to the
other side or even it changes the nature and character of the case where the
fresh suit is barred, the amendment cannot be allowed. On this ground, he
submits that the said order may kindly be set aside.
8. On the other hand, learned counsel for the O.P.no.1 opposed the prayer
and submits that due diligence has been shown and the learned court has
considered all the aspect of the matter and thereafter has allowed the same. He
submits that the said amendment is formal in nature and section 49 of the
Chhotanagpur Tenancy Act is also involved as the plaintiff /respondent is said to
be of the caste of Kurmi whereas the petitioner/defendant is of general caste.
He submits that in view of that the nature of amendment is formal and the
learned court has rightly allowed the petition. He relied in the case of Om
Prakash Agrawal v. Kamla Prasad Gupta reported in 2013 1 JBCJ 321
and he refers to paragraph nos.6 and 7, which is as under:
"6. Considering the aforesaid rival submission and from
perusal of order impugned as well as other papers annexed with
the petition, it appears that the Court below has allowed the
amendment petition at the stage of defendant's evidence. It
further appears that the written statement was filed on 9th
September 2004 and thereafter the issues have been framed in the
year 2004 itself and thereafter the plaintiff evidence has been
closed on 23 February 2007 and the amendment application has
been made by the plaintiff in the yeq4 2009. It further appears
that the suit is filed for title and recovery of possession and by way
of this amendment the plaintiff has given certain additional facts
in support of the subject matter of the suit, which according to the
plaintiff is in consonance with the original pleadings. On perusal of
the said application, it also appears that in paragraph 5, the
plaintiff has rendered explanation and tried to explain as to why
the amendment application was moved in the year 2009. from
perusal of the order passed by the court below it appears that the
court below has taken into account that the evidence of the
defendant is going on and the defendant will have an opportunity
to lead evidence on this issue, if required, and therefore, the court
below has rightly and properly taken the liberal view by granting
the amendment in question, which is in accordance with the
provision as contained in Order 6 Rule 17 CPC. It appears that the
plaintiff evidence is over and, therefore, now there is no question
to lead any further evidence by the plaintiff in support of
amendment in question and at the same time, the defendant shall
have an opportunity to file additional written statement and also
to lead evidence in respect of amended portion of the plaint, if
required and shall also have an opportunity to recall the plaintiff's
witnesses for further cross-examination, if required. Thus the
defendant's interest is not likely to be prejudiced in any manner. I
have also perused the judgment cited by the learned counsel for
the petitioner as well as respondent mentioned above. The
reasons given in the judgment reported in 2012(2) JLJR 388
appears to be relevant for the purpose of facts and circumstances
of the present case, wherein the Hon'ble Apex Court has observed
that the liberal view/approach should be taken by the Court while
dealing with the amendment application and the learned court
below has taken the liberal view/approach while allowing the
amendment petition to avoid any multiplicity of proceedings and,
therefore, in view of the aforesaid judgment of the Hon'ble Apex
Court, this petition deserves to be rejected. The another judgment
reported in 2011(1) jcr 379 (Jhr.) cited by the learned counsel for
the respondent is also applicable in the facts and circumstances of
the present case, wherein amendment petition was allowed at the
stage of defendant's evidence and in the said judgment, a
judgment of Hon'ble Apex Court reported in 2009(2) SCC 409 has
been referred. So far as the judgments referred to and relied upon
the learned counsel for the petitioner is concerned, there can not
be any dispute about the principle enumerated in the said
judgments but looking to the facts and circumstances of the
present cases, they do not help to the petitioner's case.
7. Looking to the facts and circumstances of the present
case, this court is of the view that the learned court below has not
committed any jurisdictional error and illegality or irregularity
while exercising the power vested upon it and has rightly allowed
the amendment application and, therefore, this writ petition
deserves to be dismissed."
9. Relying on the above judgment, he submits that the learned court has
rightly allowed the petition.
10. It is an admitted position that the said suit was proceeded with and it
has reached up to the stage of argument and at that stage a petition under
Order VI Rule 17 CPC has been filed by the plaintiff/O.P.No.1 which has been
allowed by the learned court. The suit was meant for declaration of the sale
deed as void, however, by the said amendment, recovery of possession was
also sought. In light of Order VI Rule 17 CPC, if the court comes to the
conclusion that the said amendment is necessary and to avoid multiplicity of
litigation, the court can allow the same. It is well-settled principle of law as has
been held in all the judgments that has been relied by the learned counsel for
the petitioner as well as the learned counsel for the O.P.No.1. Further the Court
has to consider about the prejudice or injustice which is likely to be caused to
the other side by the amendment and the amendment should not prejudice to
other side which cannot be compensated adequately in terms of money. The
amendment is required to be considered as it may not change fundamentally
the nature and character of the case of the parties. The learned court has given
the finding only to the effect that it is formal in nature, however, all the points
of limitation and about the consequential relief etc has been argued and
learned court has not dealt with that and only by saying that it is formal in
nature has been pleased to allow the petition, and as such, the order dated
03.02.2024 is set aside.
11. The matter is remitted back to the learned court concerned to decide the
said application afresh after hearing the petitioner in light of the parameters of
Order VI Rule 17 C.P.C. The said petition is restored to the file of the
concerned court.
12. C.M.P. No.401 of 2024 is disposed of accordingly.
( Sanjay Kumar Dwivedi, J.)
SI/
