Nabab Sah vs Mainudin Sah
2023 Latest Caselaw 2996 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
           CIVIL MISCELLANEOUS JURISDICTION No.1014 of 2018
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1. Nabab Sah, S/o Late Gafar Sai (Expunged vide order dated 09.02.2023).

2. Shaukat Ali, S/o Nabab Sah R/o Village Bhojpurwa, P.S.-Manjhagarh, District-Gopalganj

3. Kaushal Ali, S/o Nabab Sah R/o Village Bhojpurwa, P.S.-Manjhagarh, District-Gopalganj

4. Matwar Ali, S/o Nabab Sah R/o Village Bhojpurwa, P.S.-Manjhagarh, District-Gopalganj

5. Ajad Ali, S/o Nabab Sah R/o Village- Bhojpurwa, P.S.- Manjhagarh, District- Gopalganj.

6. Irsad Ali, S/o Nabab Sah R/o Village- Bhojpurwa, P.S.- Manjhagarh, District- Gopalganj.

... ... Petitioner/s Versus

1. Mainudin Sah S/o Late Gafar Sai R/o Village Bhojpurwa, P.S.-

Manjhagarh, District-Gopalganj

2. Most. Raisan Bano, W/o Late Satar Sah R/o Village Bhojpurwa, P.S.-

Manjhagarh, District-Gopalganj

3. Imamul Haque, S/o Late Jabar Sah R/o Village Bhojpurwa, P.S.-

Manjhagarh, District-Gopalganj

4. Ijajul Haque, S/o Late Jabar Sah R/o Village Bhojpurwa, P.S.-Manjhagarh, District-Gopalganj

5. Riyajul Haque, S/o Late Jabar Sah R/o Village Bhojpurwa, P.S.-

Manjhagarh, District-Gopalganj

6. Sairajul Haque, S/o Late Jabar Sah R/o Village Bhojpurwa, P.S.-

Manjhagarh, District-Gopalganj

7. Israfil, S/o Late Jabar Sah R/o Village Bhojpurwa, P.S.-Manjhagarh, District-Gopalganj

8. Ajrudin Sah, S/o Hidayat Sah R/o Village Bhojpurwa, P.S.-Manjhagarh, District-Gopalganj

9. Akbar Sah, S/o Hidayat Sah R/o Village Bhojpurwa, P.S.-Manjhagarh, District-Gopalganj

10. Bibi Aabrun, W/o-Akhtar Ali, D/o-Hidayat Sah R/o Village Bhojpurwa, P.S.-Manjhagarh, District-Gopalganj 11.1. Mubarak Hussain R/o- Vill.- Haradiyan, P.O. and P.S. and Dist.- Siwan. 11.2. Raiyaj Ahmad R/o- Vill.- Haradiyan, P.O. and P.S. and Dist.- Siwan. 11.3. Seraj Ahmad R/o- Vill.- Haradiyan, P.O. and P.S. and Dist.- Siwan. 11.4. Ayub Hussain R/o- Vill.- Haradiyan, P.O. and P.S. and Dist.- Siwan. 11.5. Hakima Khatun R/o- Vill.- Haradiyan, P.O. and P.S. and Dist.- Siwan. Patna High Court C.Misc. No.1014 of 2018 dt.13-07-2023

12. Tara Begum, W/o -Late Md. Reyajuddin, R/o Village and P.O.-Badheyam, P.S.-Mirganj, District-Gopalganj.

14. Asmahammad, S/o Late Khalil Sah R/o Village-Sahdulaipur, P.S.-Jadopur, District-Gopalganj.

15. Raj Mahammad, S/o Late Khalil Sah R/o Village-Sahdulaipur, P.S.-

Jadopur, District-Gopalganj.

16. Md. Shakir, S/o-Late Khalil Sah R/o Village-Sahdulaipur, P.S.-Jadopur, District-Gopalganj.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Vishwajeet Kumar Mishra, Advocate For the Respondent/s : Mr. Prakash Chandra Jha, Advocate Mr. Bijay Prakash Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA ORAL JUDGMENT Date : 13-07-2023

Heard learned counsel for the parties.

2. This Civil Miscellaneous Application has been filed

under Article 227 of the Constitution of India against part of the

order dated 26.04.2018 passed by learned Sub-Judge-I,

Gopalganj in Title Suit No. 358 of 2005 by which the Court

below has partly rejected the amendment application with

regard to gift deed dated 20.08.1987.

3. Brief facts of the case are that the petitioners filed

Title Suit No. 358 of 2005 for partition of suit property and

delivery of possession. The written statement was filed by

defendant No. 1 on 16.11.2009. On 18.04.2018, the petitioners

filed amendment application under Order 6 Rule 17 CPC which

was partly allowed by allowing the plaintiffs to correct the Patna High Court C.Misc. No.1014 of 2018 dt.13-07-2023

Kheshra No. as 552 in place of 252 but rejected the prayer of

adding some of the facts regarding the gift deed dated

20.08.1987.

4. Learned counsel for the petitioners submits that

addition of the paragraph in the plaint by proposed amendment

will not change the contents of gift deed dated 20.08.1987. The

amendment sought for was only to bring relevant facts to the

notice of the Court for proper adjudication of the case. The

amendment sought for in the plaint shall not change the nature

of suit and no prejudice would be caused to the defendants if the

said amendment be also permitted to be incorporated in plaint

by the petitioners.

5. Per contra, learned counsel for the respondents

submits that the petitioners wanted to incorporate the facts in the

plaint by the amendment petition amending the averments made

in the gift which is not permissible in the facts and

circumstances of this case. The suit is filed for partition and the

testator of the said gift has already been died and the averments/

contents made in the gift deed cannot be amended by

incorporating those facts in the plaint. He has further submitted

that the Court has already allowed the typing mistake. In view

of the proviso to Order 6 Rule 17 which was incorporated in Patna High Court C.Misc. No.1014 of 2018 dt.13-07-2023

2002, the petitioners have not shown any due diligence and filed

the said amendment petition at the stage of final argument

without any valid reason and with mala fide to delay the

proceeding.

6. Learned counsel for the respondents further submits

that the error in registered gift deed like area of the property, its

dimensions, location or survey number can be rectified through

execution of a supplementary document called rectification deed

after mutual consent of all the parties to the main deed and if

some of the parties to the agreement do not agree to such

rectification of the executed documents, the aggrieved other

party may file a suit before a Court under Section 26 of Specific

Relief Act, 1963. The law provides for relief to parties in case

the real intention of the party is not properly reflected in the

documents executed because of a bona fide mistake of fact.

7. Having heard the learned counsel for the parties

and on perusal of the material on record and going through the

impugned judgment, it appears that the Court has already

allowed the amendment of the typing mistake and also

permitted the petitioner to argue these facts during the argument

and accordingly, partly allowed the amendment petition and

partly disallowed the addition of the averments/contents of gift Patna High Court C.Misc. No.1014 of 2018 dt.13-07-2023

deed. The learned Court below has also stated in the impugned

order that the testator of gift-deed had died and in paragraph 13

of the written statement, it was already stated that the gift-deed

was not executed by Gafar Sah in which he has stated that he

has no son while he has two sons and petitioners have the

knowledge of the same since the year 2009. The Court below

also observed that in view of Section 91 of the Indian Evidence

Act, in case of registered document, no oral evidence is required

to be given for proof of those matters except the document

itself.

8. The object of Order 6 Rule 17 CPC is that material

facts and necessary particulars must be stated in pleadings so

that the Court should try the merits of the case that comes before

it and should allow the amendments that may be necessary for

determining the real question in controversy between the

parties. Proviso to Order 6 Rule 17 added in terms of Code of

Civil Procedure (Amendment) Act, 2002, which provides that

no application for amendment should 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, for which amendment is sought, before the

commencement of the trial. In the present case, it cannot be said Patna High Court C.Misc. No.1014 of 2018 dt.13-07-2023

that the amendment sought for is necessary for the purpose of

determining the real questions in controversy between the

parties. There is also no explanation of due diligence for

bringing the amendment at the stage of final argument. The

Court below has passed the reasoned order.

9. In view of the aforesaid facts and circumstances,

this Court does not find any illegality or error in the impugned

order to interfere under its supervisory jurisdiction under Article

227 of the Constitution of India.

10. This Civil Miscellaneous Application is,

accordingly, dismissed.

(Sunil Dutta Mishra, J)

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