Haider Imam And Anr vs Md. Ehtesham And Ors
2023 Latest Caselaw 997 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
           CIVIL MISCELLANEOUS JURISDICTION No.1296 of 2018
     ======================================================

1. Haider Imam Son of Ashique Imam

2. Anwar Imam Son of Ashique Imam Both 1 and 2 are Resident of Village-

Belhari, P.O. Belhari, P.S. Belaganj, District- Gaya, at Present Fashion Shoe, Near Agrawal Store, G.B. Road, Gaya, P.S. Kotwali, District- Gaya.

... ... Petitioner/s Versus

1. Md. Ehtesham Son of late Abdul Lateef Resident of Mohalla- Aliganj, P.S. Chandauti, Town and District Gaya , at Present residing at Mohalla- Dr. Wazir Ali Road, P.S. Kotwalio, town and District- Gaya by Occupation Business.

2. Afsan Rahman D/o late Kalimur Rahman Resident of Mohalla- Dr. Wazir Ali Road, P.S. Kotwali, town and District- Gaya, at present resident of L-302 Jai Puria Society Indra Puram, Ghaziabad U.P..

3. Naila Sumbule Wife of Syed Mohammad Sharique Alam Resident of Mohalla- Chuna Gali, Rai Baijnath Singh Lane, P.S. Kotwali, Town and District- Gaya.

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

For the Petitioner/s : Mr. Radha Mohan Pandey, Advocate For the Respondent/s : Mr. Sajid Salim Khan, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA CAV JUDGMENT Date: 15-03-2023

Heard learned counsel for the parties.

2. The instant Civil Miscellaneous application under

Article 227 of the Constitution of India has been filed for setting

aside the order dated 15.12.2017 passed by learned Sub Judge -

VIII, Gaya in Title Suit No. 80 of 2017 by which amendment

petition dated 07.12.2017 filed by the plaintiff / respondents 1st

Set under Order 6 Rule 17 and Section 151 of the Code of Civil

Procedure has been allowed.

Patna High Court C.Misc. No.1296 of 2018 dt.15-03-2023

3. Learned counsel for the petitioners has submitted that

the plaintiff / respondent No. 1 instituted Title Suit No. 80 of

2017 on 13.10.2017 for declaration that defendant No. 1/

respondent No. 2 herein (the owner of suit land) had no right to

make any construction over the roof of plaintiff's ground floor

of the suit property and the registered sale deeds by defendant

No. 1 in favour of defendant Nos. 2 and 3 (first floor) and in

favour of respondent No. 4 (second floor) are void ab initio

conferring no title on the said vendees and not binding on

plaintiff. The mandatory and permanent injunction has also been

prayed for. Petitioner Nos. 1 and 2, who are defendant Nos. 2

and 3 before the trial Court, have also appeared in the suit and

filed their joint written statement and denied the claim of the

plaintiff. The plaintiff thereafter before settlement of issues filed

an amendment petition dated 07.12.2017 for amending his

pleading in the plaint which has been allowed with cost vide the

impugned order dated 15.12.2017.

4. Learned counsel for the petitioner has further

submitted that the learned trial Court without providing

sufficient opportunity to file rejoinder to the amendment petition

passed the impugned order, the proposed amendment in plaint

will change the nature of plaint and the same is not bona fide as Patna High Court C.Misc. No.1296 of 2018 dt.15-03-2023

the plaintiff wants to grab the entire land and building whereas

he has purchased ground floor up to height of 14 feet only as is

described in the sale deed dated 26.05.2006. He further submits

that the impugned order being illegal is liable to be set aside by

this Court in its supervisory jurisdiction.

5. Learned counsel for the respondents submits that the

proposed amendment has been sought for in the light of the

averments made in respect of sale deed dated 26.05.2006

executed in favour of plaintiffs and also two sale deeds dated

23.03.2009 and 29.10.2013 made in favour of defendants which

are under challenge in the suit. In view of the challenge of both

the sale deeds executed in favour of defendants, the present

amendment is necessary in order to determine the real issue in

controversy between the parties. It is neither unwarranted nor

mala fide rather it is mere explanation of foundational pleadings

already made. He has submitted that the petition dated

31.01.2018 to amend the pleading with respect to condition of

height in sale deed dated 26.05.2016, has been allowed by the

order dated 03.02.2018 by the trial Court and affirmed by the

High Court vide order dated 27.09.2018 passed in Civil

Miscellaneous No. 782 of 2018.

6. Learned counsel for the plaintiff / respondent 1 st set Patna High Court C.Misc. No.1296 of 2018 dt.15-03-2023

submits that the plaintiff has challenged the sale deed in the suit

and also pleaded that plaintiff acquired absolute ownership over

the suit land up to sky high irrespective of the illegal and

unlawful condition put in the sale deed dated 26.05.2016 and

these issues are to be adjudicated by the trial Court on the basis

of evidence adduced in support of such claim which cannot be

seen at this stage. Amendments sought are based on

fundamental facts already pleaded and formal in nature, are also

necessary for determination of issue in controversy. Moreover,

since the same have been made prior to commencement of trial

or even before framing of issues, there is no question of any

prejudice being caused to the defendants / petitioners.

7. It is submitted that there is no jurisdictional error

committed by the trial Court by allowing the amendment

petition as the amendments sought are neither barred by law of

limitation nor will change the nature of suit nor even can be

termed as mala fide and the same are necessary to resolve /

adjudicate all the issues between the parties in respect of subject

matter of the suit. He has next submitted that it is universal

principles of law that allowing amendments does not amount

allowing suit itself rather it is only prior notice for the other side

because amended pleadings and reliefs are required to be Patna High Court C.Misc. No.1296 of 2018 dt.15-03-2023

proved.

8. Having heard the learned counsel for the parties and

on perusal of the materials on record and also the impugned

order, it appears that the learned trial Court had given the

opportunity to file rejoinder (if any) to the amendment petition

but the same had not been filed and on merit held that

amendments are required to bring out the real matter in

controversy and do not change the nature of the suit and issues

have not been framed in this suit and the suit is in infancy stage,

some amendments are pure formal and some are elaboration of

the facts pleaded in the plaint. The trial Court on consideration

of the said facts and circumstances allowed the said amendment

petition with cost.

9. The Hon'ble Supreme Court in Revajeetu Builders

and Developers Vs. Narayan Swamy and Sons and Others

(2009) 10 SCC 84 on critically analysing both the English and

Indian Cases, held that some basic principles emerge which

ought to be taken into consideration while allowing or rejecting

the application for amendment.

(i) whether the amendment sought is imperative for proper and effective adjudication of the case.

(ii) whether the application for amendment is bona fide or mala fide.

(iii) the amendment should not cause Patna High Court C.Misc. No.1296 of 2018 dt.15-03-2023

such prejudice to the other side which cannot be compensated adequately in terms of money.

(iv) refusing amendment would in fact lead to injustice or lead to multiple litigation.

(v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case, and

(vi) 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

VI Rule 17. These are only illustrative and not exhaustive.

10. The law is now well settled that the Courts must

not refuse bona fide, legitimate, honest and necessary

amendments and should not permit mala fide, worthless and/or

dishonest amendment. The purpose and object of Order VI Rule

17 of the Code of Civil Procedure is to allow either party to alter

or amend his pleadings in such manner and on such terms as

may be just. Such amendments seeking determination of real

question of controversy between the parties shall be permitted to

be made. Pre-trial amendments are to be allowed liberally than

those which are sought to be made after the commencement of

the trial. The opposite parties are not prejudiced because they Patna High Court C.Misc. No.1296 of 2018 dt.15-03-2023

will have an opportunity of meeting the amendment sought to be

made.

11. Applying these parameters to the present case and in

the light of above discussion of facts and law, I find that the

learned trial Court has not committed any illegality, error or

mistake and accordingly the impugned order does not warrant

any interference by this Court under Article 227 of the

Constitution of India. The application is being devoid of any

merit and is liable to be dismissed.

12. This application is, accordingly, dismissed.

However, it is needless to state that the defendants shall have

liberty to file additional written statement.

13. There shall be no order as to costs.

(Sunil Dutta Mishra, J)

saurabhkr/-

AFR/NAFR                 NAFR
CAV DATE                 09.02.2023
Uploading Date           15.03.2023
Transmission Date        NA