Jharkhand High Court
Abhishek Verma vs Ram Sharan Yadav on 25 March, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
C.M.P. No. 155 of 2024
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Abhishek Verma, aged about 29 years, S/o Lt. Basant Prasad,
Resident of - Ward No.19, Naya Bazar, Madhupur, PO and PS -
Madhupur, District - Deoghar .... Petitioner/Plaintiff
-- Versus --
1. Ram Sharan Yadav, son of Late Rohan Yadav, Resident of Naya
Bazar, Madhupur Town, PO and PS - Madhupur, District - Deoghar
2. Ashish Tikrewal, S/o - Binod Kumar Tekrewal, Resident at Mohalla -
Chowk Bazar, Madhupur, PO and PS - Madhupur, District - Deoghar
....... Opposite Parties/Defendants
3. Mina Devi, W/o Basant Prasad
4. Ravi Kumar, S/o Basant Prasad
5. Rachna Kumari, D/o Basant Prasad
6. Sonam Kumari, D/o Basant Prasad
No.3, 4, 5 and 6 are Residents of Ward No.19, Naya Bazar,
Madhupur, PO and PS - Madhupur, District - Deoghar
.... Proforma Defendants/Plaintiffs
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Ashutosh Pd. Joshi, Advocate
For the O.P. No.2 :- Mr. Onkar Nath Tiwary, Advocate
:- Mr. Shahid Yunus, Advocate
:- Mr. Shamaiel Raza, Advocate
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08/25.03.2025 Heard learned counsel appearing for the petitioner and
learned counsel appearing for the opposite party No.2.
2. Notice upon the opposite party No.1 has been validly
served and notice upon the O.P. Nos.3 to 6 have been dispensed
with by order dated 13.12.2024 as they are said to be the
proforma opposite party.
3. This petition has been filed under Article 227 of the
Constitution of India for setting aside of the order dated
04.12.2023 passed by learned Civil Judge (Sr. Division)-I,
Madhupur in Misc. Civil Application No.33 of 2023 arising out of
Original Suit No.06 of 2009 whereby the petition dated 06.04.2023
filed by the petitioner/plaintiff under Order VI Rule 17 of CPC for
amendment of the plaint has been rejected.
4. Learned counsel appearing for the petitioner submits that
the father of the petitioner namely Basant Prasad (sole plaintiff) has
filed Original Suit No.06 of 2009 against original sole defendants
namely Ram Sharan Yadav for a decree of specific performance and
other consequential relief in respect of suit schedule property as
Schedule A and praying therein for adjudication of the suit, a decree
for declaration be passed in favour of the plaintiff and against the
defendant and direct the defendant to execute and register the sale
deed in favour of the plaintiff and if the defendant fails to execute
and register the sale deed in that circumstances sale deed may be
registered in favour of the plaintiff through process of the Court. He
submits that during the pendency of the said suit the original
plaintiff namely Basant Prasad had died and he has been
substituted by the petitioner and proforma defendants in the suit as
his legal heirs. He submits that during the pendency of the said suit
an intervening application dated 21.12.2018 has been filed by one
Ashish Tekrewal under Order 1 Rule 10(2) of CPC vide M.C.A.
No.312 of 2018 for his impleadment in the Original Suit No.06 of
2009 as party defendant which was allowed by the learned court by
order dated 20.12.2022 and thereafter the intervener who has
allowed the defendant has filed the written statement and brought
certain new facts including purchase of the suit property in the year
2015 which has come to the knowledge of the plaintiff after filing of
the written statement and in view of that the petition has been filed
under Order 6 Rule 17 of the CPC for amendment in the plaint
incorporating para 13 to the effect that defendant No.2 claim over
the suit property based on the sale deed executed by his vendor
Jagdish Yadav is ab-initio, void, illegal and inoperative and also
based on fraudulent transaction of sale which has been rejected by
the learned Court. He submits that the transaction has taken place
during the pendency of the suit and it was not in the knowledge of
the petitioner/plaintiff and in view of that the learned Court has
wrongly rejected the petition. He submits in light of Article 59 of the
Limitation Act the limitation will start in specific performance case
when it has come to the knowledge of department. He further
submits that in the said property by way of constructing the house
the petitioner/plaintiff is residing therein. On this ground, he
submits that the nature of the suit will not change in spite of that
the learned Court has rejected the petition.
5. Mr. Onkar Nath Tiwary, learned counsel appearing for the
opposite party No.2 opposes the prayer and submits that there is no
relevance of such amendment in the plaint and if that amendment
will be allowed the entire nature of the suit will be changed and it is
also time barred. He relied in the case of Suresh Prasad versus
Sri Suraj Kumar Bhadani reported in (2018) 3 JBCJ 412.
6. It is an admitted position that the suit was instituted by the
petitioner/plaintiff for a decree of specific performance and other
consequential relief in respect of suit schedule property as Schedule
A. The suit proceeding has proceeded and in the midst of the
proceeding petition under Order 1 Rule 10 of the CPC has been filed
by the newly added defendant No.2 in the suit which was allowed
by the learned Court. It has not been denied that the said
transaction of sale deed has taken place during the pendency of the
suit property and admittedly petition under Order 1 Rule 10 of CPC
has been filed for impleadment which has been allowed by the
learned Court. Once the said property was the subject matter of the
suit and during the pendency of that suit the said transaction has
taken place to allow the amendment will not change the nature of
suit. The learned Court has allowed the petition under Order 1 Rule
10 of CPC for impleadment on the ground that he is the purchaser
from the other co-sharers and in this regard reference may be made
to the case of Dhanlakshmi and Others versus P. Mohan and
Others reported in (2007) 10 SCC 719 wherein at paragraph
No.5, it has been held as under :-
5. Section 52 deals with a transfer of property
pending suit. In the instant case, the appellants have
admittedly purchased the undivided shares of the
respondents nos.2,3,4 & 6. It is not in dispute that
the first respondent P. Mohan has got an undivided
share in the said suit property. Because of the
purchase by the appellants of the undivided share in
the suit property, the rights of the first respondent
herein in the suit or proceeding will not affect his
right in the suit property by enforcing a partition.
Admittedly, the appellants, having purchased the
property from the other co-sharers, in our opinion,
are entitled to come on record in order to work out
the equity in their favour in the final decree
proceedings. In our opinion, the appellants are
necessary and proper parties to the suit, which is
now pending before the Trial Court. We also make it
clear that we are not concerned with the other suit
filed by the mortgagee in these proceedings.
7. In view of the above judgment, due to work out the equity
as the petitioners are also the co-sharer of the land and having no
knowledge of transfer of the said property during the pendency of
the suit and further once the written statement has been filed
thereafter that has come to the knowledge of the petitioner/plaintiff
and to avoid the multiplicity of the litigation this has to be ended in
its right perspective the amendment sought by the plaintiff is
necessary. So far the limitation is concerned in the aforesaid
background that is a mix question of fact and law that can be
proved by the parties by way of leading evidence in the trial.
8. In view of the above, the Court finds that the amendment
sought in the plaint by the petitioner will not change the nature of
the suit, as such the order dated 04.12.2023 passed by the learned
Court is hereby set aside.
9. The petition filed under Order 6 Rule 17 of CPC by the
petitioner/plaintiff is allowed.
10. The learned Court will allow the petitioner to make out
amendment in the plaint with a right to rebuttal by the defendants.
11. This petition is allowed and disposed of.
(Sanjay Kumar Dwivedi, J.)
Sangam/
A.F.R.
