Patna High Court
Bhola Mandal vs Arjun Mandal on 1 August, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.88 of 2023
======================================================
Bhola Mandal Son of Late Choudhary Mandal Resident of Sitarampur
Pithdauri, Police Station- Sultanganj, District- Bhagalpur at present Rly.
Colony (Dimond Crossing) Dhanbad, Police Station- Bank More, District-
Dhanbad (Jharkhand).
... ... Petitioner/s
Versus
Arjun Mandal Son of Late Choudhary Mandal Resident of Sitarampur
(Pithdauri), Police Station- Sultanganj.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Rajendra Narain, Sr. Advocate
Dr. Manoj Kumar, Advocate
For the Respondent/s : Mr. Harish Chandra Patel, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 01-08-2024
Heard both the parties.
02. The present petition has been filed under Article
227 of the Constitution of India for setting aside the order dated
15.10.2022
passed by learned Additional District Judge-17,
Bhagalpur in Title Appeal No. 86 of 2019 whereby and
whereunder the learned Appellate Court rejected the amendment
petition filed by the petitioner.
03. Briefly stated the facts of the case are that
petitioner was plaintiff in Title Suit No. 392 of 2003 which was
filed seeking the following reliefs:
"a. The court be pleased to declare that plaintiff
has got perfect right, title interest over the land
in question and record of right is illegal, void,
ultravirous and bad in law and declare that
Patna High Court C.Misc. No.88 of 2023 dt.-01-08-2024
defendant has got no concern over the land in
question.
b. The court further be pleased to hold and
declare that exclusive owner has got good title
over the land in question and defendant has got
no concern and record of right is illegal, void
and bad in law.
c. The court further be pleased to hold and
declare that land in question is self acquired
property of the plaintiff.
d. Costs and other reliefs."
Respondent was the defendant and is the own brother
of the plaintiff. The petitioner and respondent had no ancestral
property except some homestead land. The petitioner purchased
a plot of land bearing Khata No. 176, Khesra No. 601(P)
measuring an area 4 katha 11 dhurs of Mauza Pithdauri by a
registered sale deed dated 02.08.1971 and came in its
possession. The name of the petitioner was mutated and
jamabandi was created in his name. On the said land the
petitioner constructed a pucca house of six rooms, however,
during municipal survey the land was recorded in the name of
the petitioner and respondent jointly. The petitioner claimed that
respondent, taking advantage of wrong entry in khatiyan wanted
to grab the land of the petitioner. The petitioner requested the
respondent several times to execute a deed of relinquishment
and on his refusal the petitioner filed the title suit. The
defendant-respondent appeared but failed to file his written
statement and the suit proceeded under Order-8, Rule-10 of the
Patna High Court C.Misc. No.88 of 2023 dt.-01-08-2024
Code of Civil Procedure (in short "the Code"). However, the
respondent contested the suit and cross-examined the witnesses
of the plaintiff/petitioner and also adduced evidences. The
learned Sub-Judge-VIII, Bhagalpur after hearing the matter and
considering the material available on record, decreed the suit in
favour of the plaintiff and against the defendant. Being
aggrieved and dissatisfied with the said judgment and decree
dated 28.06.2019, the defendant/respondent filed Title Appeal
No. 86 of 2019 which is pending before the Court of learned
Additional District Judge-17, Bhagalpur. During pendency of
the title appeal, the petitioner came to know about mistake of
typist resulting in insertion of wrong plot no. in the plaint and
the petitioner on 22.02.2021 filed an application under Order-6,
Rule-17 read with Section 151 of the Code praying therein to
amend the plaint seeking the following amendments:
"(i) That in para-16(a) of the plaint in
T.S.No.392/03 after the word new plot the
word "1121" be deleted and it's place "1125, K,
KH, G, GH, Ch be substituted.
(ii) That in Schedule-'A' of the plaint new plot
No.1121 be deleted and it's place 1125, K, Kha,
G, Gha, Ch be substituted."
A rejoinder to the amendment petition was filed by
the respondent herein. The learned Additional District Judge-17,
Bhagalpur vide the impugned order 15.10.2022 rejected the
amendment petition and the said order has been challenged
Patna High Court C.Misc. No.88 of 2023 dt.-01-08-2024
before this Court.
04. Learned senior counsel Mr. Rajendra Narain,
appearing on behalf of the petitioner has vehemently assailed
the impugned order. Mr. Narain, submitted that the learned trial
court erred in rejecting the prayer for amendment without
considering the fact that the proposed amendment is formal in
nature and would not change the nature of the suit and therefore,
no prejudice was going to be caused to the other side. Mr.
Narain further submitted that so far as addition of new plot
numbers are concerned the same has been carved out from old
plot no. which was subject matter of the suit with defined
boundary. No new fact is being sought to be incorporated
through the amendment petition. The First Appellant Court
missed the settled proposition of law that if plot number is
wrong the boundary will prevail. The learned First Appellate
Court wrongly held that if amendment was allowed, the matter
would require to be considered afresh. Mr. Narain further
submitted that as new plot nos. have been marked for old
Khesra No. 601(P), wrong new plot no. has been mentioned in
paragraph 16(A) as well as in the Schedule 'A' of the plaint. The
correct Plot No. is 1125, but due to typographical error 1121 has
been mentioned. Mr. Narain further submitted that the petitioner
Patna High Court C.Misc. No.88 of 2023 dt.-01-08-2024
has got no concern with Plot No. 1121 and mistake committed is
bona fide mistake and amendment sought for its correction is
formal in nature. Old Plot No. 601(P) bifurcated into new plots
i.e., Plot No. 1121 as well as 1125 K, Kh, G, Gh, Ch since Plot No.
601(P) was a big plot and petitioner has purchased only 4 katha
11 dhurs out of the said plot. The land purchased by the
petitioner corresponds the Plot No. 1125 K, Kh, G, Gh, Ch and the
petitioner has got no concern with Plot No. 1121. Thus, the
learned senior counsel submitted that the order of the learned
First Appellate Court is not sustainable and the same be set
aside and the petition of the petitioner for amendment be
allowed.
05. Learned counsel appearing on behalf of the
respondent vehemently opposed the submission made on behalf
of the petitioner. Learned counsel for the respondent further
submitted that the petitioner on an earlier occasion filed an
amendment petition for amending the Khesra No. during the
pendency of the Title Suit No. 392 of 2003 and thus inserted
new Khesra No. 1121 having area 4 katha 11 dhurs mentioning
that Plot No. 1121 was carved out from old Plot No. 601(P).
This amendment was allowed way back on 11.05.2007 and the
petitioner has been sleeping over the matter. The proposed
Patna High Court C.Misc. No.88 of 2023 dt.-01-08-2024
amendment was well within the knowledge of the petitioner
since the time of filing of the suit and the petitioner has failed to
disclose that in spite of due diligence, he could not bring the
proposed amendment. Therefore, the petitioner is not entitled
for the same. Learned counsel referred to the decision of
Hon'ble Supreme Court in Civil Appeal No. 3917 of 2013 dated
18.04.2013 in Mashyak Grihnirman Sahakari Sanstha
Maryadit vs. Usman Habib Dhuka & Ors. reported in 2013
LawSuit(SC) 336 in support of his contention. The proposed
amendment is quite belated. Learned counsel further submitted
that respondent has been residing at the parental house of Mauza
Pithdauri, Ward No. 6, Khata No. 527, Plot No. 1125 K, Kh, G,
Gh, Ch whereas, petitioner has been residing in Plot No. 1121.
Learned counsel further submitted that the petitioner wants to
grab the homestead land of the respondent by bringing the
amendment as the petitioner is already residing in Plot No.
1121. Moreover, the petitioner has failed to show any paper that
new Plot No. 1125 K, Kh, G, Gh, Ch has been carved out from old
Plot No. 601(P) which was purchased by the petitioner. Thus,
the learned counsel submitted that there is no merit in the
present petition and the same be dismissed.
06. I have given my thoughtful consideration to
Patna High Court C.Misc. No.88 of 2023 dt.-01-08-2024
various aspects of the matter. Admittedly, the suit land is having
old Khata No. 176, old Khesra No. 601(P) area 4 katha 11 dhurs
of Mauza Pithdauri. Subsequently, the petitioner through an
amendment got inserted Plot No. 1121 K, Kh, G, Gh, Ch as the
corresponding plot no. of his purchased land which was carved
out from old Plot No. 601(P). It is the general principle of
amendment that all amendment shall be allowed at any stage
which might be necessary for the purpose of determining the
real question in controversy between the parties. This general
proposition is subject to the bar 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. The general rule of amendment is
further subject to the condition that the amendment should not
be mala fide, should not incorporate time barred claim and
should not change the nature of the suit. It should not cause
prejudice to the other side. The Courts have been liberal in
allowing amendment. In the present case, the amendment has
been sought to be incorporated at the appellate stage on the
ground that it was a typing error and inadvertence on part of the
petitioner. The learned First Appellate Court rejected the
Patna High Court C.Misc. No.88 of 2023 dt.-01-08-2024
amendment on account of fact that the Plot No. 1121 was added
by the petitioner by way of an earlier amendment and the decree
was issued with regard to Plot No. 1121. Further reason given
by the learned First Appellate Court was that the petitioner did
not clarify why he wanted to delete Plot No. 1121 which is part
of the disputed land and why the petitioner wanted to insert
Khesra No. 1125 K, Kh, G, Gh, Ch. The fact remains the
amendment sought to be brought about have been moved after
much delay and there is blend explanation of inadvertence and
mistake of the typist. Even after passing of the decree, the fact
was not taken note of by the petitioner which speaks volumes
about his casual approach. However, considering the fact that
the real controversy between the parties should be adjudicated
and if for whatsoever reason, the correct Plot No. has not been
mentioned in the original plaint, such amendment in correction
of Plot No. could be allowed subject to heavy cost to
compensate the respondent for all the trouble which he has been
facing since the institution of suit. From the facts of the case it is
also apparent that there appears no prima facie case of mala fide
in bringing the amendment. As dispute is over right title and
interest on the suit land, change in Plot No. should not cause
prejudice to the respondent who failed to file written statement
Patna High Court C.Misc. No.88 of 2023 dt.-01-08-2024
but was allowed to cross examine the plaintiff's witnesses and
was further allowed to adduce his own evidence. The
amendment sought to be incorporated appears to be necessary
for adjudication of real controversy between the parties and in
my view, the same ought to be allowed subject to cost and other
conditions.
07. Therefore, in the light of aforesaid discussion in
the matter, order dated 15.10.2022 is set aside and petition dated
22.02.2021 is allowed subject to payment of cost of Rs.50,000/-
to be paid to the respondent on the first date before the learned
First Appellate Court. This order is subject to further condition
that the respondent will be permitted to file his written statement
for controverting/rebutting the claim of the plaintiff and would
further be allowed to bring on record his evidence and
documents in support of his claim, if he so desires.
08. With the aforesaid directions, the present petition
stands allowed.
(Arun Kumar Jha, J)
anuradha/-
AFR/NAFR NAFR
CAV DATE 09.07.2024
Uploading Date 02.08.2024
Transmission Date N/A
