Patna High Court
Yogendra Bahadur Singh vs Surendra Bahadur Singh And Ors on 11 January, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.731 of 2018
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Yogendra Bahadur Singh, S/o- Late Shyam Sunder Singh, resident of Village
and P.O.- Barhauna, P.S.- Chainpur, District- Kaimur.
... ... Petitioner/s
Versus
1. Surendra Bahadur Singh, S/o Late Shyam Sunder Singh,
2. Pratik Kumar Singh,
3. Ambar Raj Singh Both S/o Surendra Bahadur Singh, All residents of
Village- Barhauna, P.O.- Barhauna, P.S.- Chainpur, District- Kaimur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Patanjali Rishi, Advocate
For the Respondent/s : Mr. Arbind Nath Pandey, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 11-01-2024
The instant petition has been filed against the order dated
12.02.2018
passed by learned Sub-Judge-IInd, Bhabhua in Title
Suit No. 90 of 2003 by which the petition dated 23.11.2015 filed
on behalf of the petitioner under Order VI Rule 17 and Section
151 of the Code of Civil Procedure for the amendment of
written statement, additional written statement and counter
claim was partly allowed and was partly rejected in respect of
certain amendment in the additional written statement.
2. The facts of the case as it appears from the record is
that the petitioner and respondent no.1 are full brothers.
Respondent nos. 2 and 3 are sons of respondent no.1 The
plaintiff/respondent filed a suit for partition in respect of
Patna High Court C.Misc. No.731 of 2018 dt.11-01-2024
properties said to be the joint family property in the court of
learned Sub-Judge-Ist, Bhabhua on 07.05.2003 vide Title Suit
No. 90 of 2003. Petitioner is defendant no.1. The plaintiffs and
the defendants are the descendants of late Shyam Sunder Singh.
The plaintiffs claimed that they are members of joint family and
the plaintiff no.1 is the karta of the family. The defendant nos. 1
to 3 are also the members of joint family and the defendant no.1
is the karta. The plaintiffs claimed in their plaint that the
properties described in Schedule 'Ka' and 'Kha' of the plaint are
joint family properties which have not been partitioned by metes
and bounds. The father of plaintiff no.1 and defendant no.1 died
in 1971 in jointness and their mother died on 20.10.2001. The
plaintiffs further claimed that the plaintiffs and the defendants
separated in mess and residence and started cultivating their
land separately for last few years but no partition has taken
place between the two sides by metes and bounds. Out of joint
family fund, a piece of land at Bhabhua was purchased and a
house was constructed by joint family fund. After the death of
the mother and sister of plaintiff no.1 and defendant no.1, they
inherited their share. During land ceiling proceeding, sale deed
of Paras Nath Singh and Shambhu Singh was held illegal and
the possession of the family of the plaintiffs was declared on the
Patna High Court C.Misc. No.731 of 2018 dt.11-01-2024
said land and it was held to be their property. The plaintiffs
further claimed that father of the plaintiff no.1 and defendant
no.1 during his lifetime on 07.08.1962 gifted 25.62 acres to
defendant no. 4 and 20.87 acres to mother of plaintiff no.1 by
deed nos. 5325 and 5322 and put the donees in possession
thereof. For this reason he had no right to execute gift deed no.
5328 dated 07.08.1962 in the name of defendant no. 1 who was
a minor at that time and the said document is a void document.
Defendant no.1 never came into possession of the said land. In
this manner, plaintiffs claimed 5/12 share in the suit properties
and prayed for a decree for partition.
The petitioner/defendant no.1 and his elder son/
defendant no.2 appeared in the suit and they filed their joint
written statement on 24.02.2004. The defendants claimed that
plaintiffs and defendants separated in mess, residence and
cultivation in 1979. The properties described in Schedule-'Kha'
of the plaint were allotted to defendant no.1 and his sons by oral
partition. Further, the properties of Schedule-'Ka' are not joint
family property. Some of the properties of Schedule-'Ka' are the
acquired property of defendant no.1 through gift. One of the
properties was sold by the father of plaintiff no.1 and defendant
no.1. The defendant no.1 is coming into possession of self-
Patna High Court C.Misc. No.731 of 2018 dt.11-01-2024
acquired property and the same was not liable to be partitioned.
The defendant further claimed that mother of defendant no.1
died in June, 1989 while residing in her matrimonial home. The
defendant further claimed that plaintiffs have deliberately left to
include joint property in Schedule-Ka' situated at Akhlaspur
having total area of 5 acres of Plot No. 3166, Khata No. 930
which is purchased property of Shyam Sunder Singh. Mother of
plaintiff no.1 and defendant no.1 was not allotted separate unit
in total 79.64 acres but in plaint only 51.32 acres has been
mentioned. Further, Shyam Sunder Singh sold the land to
Shambhu Nath Singh. Plaintiff no.1 and defendant no.1 sold
land in favour of Paras Nath Singh and the purchasers were put
in possession of their respective lands. Thereafter, Shambhu
Nath Singh executed a power of attorney in favour of defendant
no.1 after receiving sale consideration amount from wife of
defendant no.1 and on 09.12.2000 and 16.12.2000 executed sale
deeds in favour of wife, son and daughter of defendant no.1.
Defendant no.1 further claimed land of Khata No. 64 by
registered gift dated 09.08.1962. Further, claim of defendant is
that the description of joint property is not correct except a few
and the plaintiffs have wrongly included the personal and
exclusive property of defendant no.1, defendant no.2 and wife
Patna High Court C.Misc. No.731 of 2018 dt.11-01-2024
of defendant no.1, the daughter of defendant no.1 and Paras
Nath Singh and defendant no.2 in Schedule-'Ka'. Plaintiffs
have no share in Schedule-'Kha' properties which were allotted
to defendant no.1 in partition. Thus, the plaintiffs have no share
as claimed to the extent of 5/12 in Schedule-'Ka' as entire land
of Schedule-'Ka' are not a joint property. There is no unity of
title and possession. The property described in Schedule- 'A' of
the written statement is the joint family property whereas land
of village Ismyalpur under Khata No. 43 is exclusive property
of defendant no.1 which he acquired through gift deed executed
by Kuwari Kunwar. As per oral partition of 1990, plaintiffs have
been residing in the ground floor and the defendants on the
upper floor of the house situated at Bhabhua.
3. Further, the case of the petitioner is that plaintiffs filed
petition for amendment of plaint under Order VI Rule 17 of the
Code of Civil Procedure which was allowed by the learned court
below by order dated 03.08.2004 with an option to the
defendants to file additional written statement. Accordingly, the
defendant nos. 1 and 2 filed an additional written statement on
22.11.2004 in respect of amended portion of the plaint
controverting the allegations and statements of the plaintiffs
added in amended paragraph nos. 12 'Ka', 'Kha', 'Ga' and
Patna High Court C.Misc. No.731 of 2018 dt.11-01-2024
'Aga' of the plaint. But due to inadvertence some wrong and
contradictory statements came to be included in the additional
written statement. The petitioner has also filed counter claim in
the said suit in addition to his written statement and additional
written statement in respect of left over properties of the
plaintiffs in the plaint. On 23.11.2015, the petitioner filed a
petition for amendment of written statement, additional
statement and counter claim under Order VI Rule 17 of C.P.C.
in order to correct inadvertent mistakes in the pleadings. The
respondents/plaintiffs filed a rejoinder dated 29.02.2016 to the
said amendment petition dated 23.11.2015. After hearing the
parties, the learned court below by impugned order dated
12.02.2018 allowed the proposed amendment in written
statement and counter claim with cost of Rs. 3,000/- but refused
to allow amendment in the additional written statement. The
petitioner is aggrieved by the said order dated 12.02.2018
rejecting the aforesaid amendment.
4. Learned counsel appearing on behalf of the petitioner
submitted that the impugned order passed by the learned Sub-
Judge-IInd, Bhabhua is erroneous in law and also on facts. The
learned court below committed an error in disallowing the
proposed amendment no.2 in the additional written statement
Patna High Court C.Misc. No.731 of 2018 dt.11-01-2024
filed by the defendant. The learned court below ought to have
allowed the amendment petition in toto in order to avoid
confusion and contradiction in the pleadings. In the original
written statement the petitioner has specifically stated that
Kuwari Kunwar had gifted her properties of village Ismyalpur
appertaining to Khata No. 43 to the defendant no.1/petitioner
upon which he has been coming in exclusive possession. But
due to inadvertence a contradictory statement was wrongly
made in the additional written statement which has been sought
to be retracted by the proposed amendment which shall neither
change the nature of the suit nor it would cause prejudice to the
plaintiffs. Additional written statement was filed after
amendment of the plaint and while controverting newly added
statement of the plaintiffs, due to sheer inadvertence of the
concerned advocate, contradictory statement was mentioned in
the additional written statement touching upon the ownership
and right of Kuwari Kunwar and the petitioner was advised to
delete the wrong and contradictory statement from the
additional written statement by proposed amendment no.2
which does not amount to withdrawal of admission.
5. Learned counsel for the petitioner further submitted
that defendant has liberty to withdraw any wrong admission
Patna High Court C.Misc. No.731 of 2018 dt.11-01-2024
made earlier in the pleadings. Learned counsel further submitted
that in the written statement, defendant has liberty to make even
contradictory statements and to retract any admission.
6. Learned counsel for the petitioner relied on the
decision of the Hon'ble Supreme Court in the case of Usha
Balashaheb Swami and Ors. vs. Kiran Appaso Swami and
Ors., reported in (2007) 5 SCC 602. Paragraph no.19 of the said
judgment reads as under:-
"19. It is equally well-settled principle that a prayer
for amendment of the plaint and a prayer for
amendment of the written statement stand on different
footings. The general principle that amendment of
pleadings cannot be allowed so as to alter materially
or substitute cause of action or the nature of claim
applies to amendments to plaint. It has no
counterpart in the principles relating to amendment
of the written statement. Therefore, addition of a new
ground of defence or substituting or altering a
defence or taking inconsistent pleas in the written
statement would not be objectionable while adding,
altering or substituting a new cause of action in the
plaint may be objectionable."
7. Learned counsel further submitted that moreover, there is
no retraction of any admission since the inconsistent pleading, which
appears to be a question of law and should not have been part of the
additional written statement in first place, has been sought to be
withdrawn. Further, the amendment would not cause any prejudice to
the plaintiffs/respondents. What has been sought to be withdrawn is a
question of law since issue of succession is the matter in issue and
for this no pleadings are required. Thus, learned counsel submitted
Patna High Court C.Misc. No.731 of 2018 dt.11-01-2024
that impugned order rejecting the proposed amendment is otherwise
bad in the eyes of law and is not sustainable.
8. Learned counsel for the respondents/plaintiffs vehemently
contended that there is no illegality in the impugned order and the
same does not need any interference. Learned counsel for the
respondents further submitted that the proposed amendment sought
to be introduced in the written statement has been filed at a very
belated stage. The defendants have time and again sought
amendment in their pleading and five times such amendments have
been allowed and the instant case is the 6 th occasion. After the
evidence has been closed, this amendment has been proposed. The
proposed amendment is hit by proviso to Order VI Rule 17 of the
C.P.C. as the petitioner has failed to show that he could not have
introduced the amendments prior to the commencement of trial.
Learned counsel further submitted that after commencement of trial
there is no scope for amendment unless due diligence on the part of
the petitioner is shown. On this aspect, reliance has been placed on a
decision of the Hon'ble Supreme Court in the case of
Ajendraprasadji N. Pandey and Ors. v. Swami Keshavprakeshdasji
and Ors. Reported in AIR 2007 SC 806.
9. Learned counsel further submitted that the plaintiffs
claimed that the entire property of late Harihar Singh after death of
his wife Kuwari Kunwar devolved upon the legal heirs of brothers of
Harihar Singh, namely, Shivparsan Singh and Ram Naresh Singh.
Patna High Court C.Misc. No.731 of 2018 dt.11-01-2024
This fact was admitted by the defendants in paragraph no. 3 of their
additional written statement and now they want to withdraw this
admission. On such impermissibility, learned counsel relied on the
decision of the Hon'ble Supreme Court in the case of Modi Spinning
& Weaving Mills Co. Llt. And Ors. Vs. Ladha Ram & Co. reported
in AIR 1977 SC 680.
10. Learned counsel further submitted that the petitioner is
under apprehension that he will lose the case and for this reason he
wants to linger on the matter and kept on filing amendment petition
from time to time. Thus, learned counsel for the respondents
submitted that the impugned order is correct and it needs to be
sustained.
11. Learned counsel for the petitioner, by way of reply,
reiterated that the defendants could withdraw or explain an admission
made in the written statement. In this regard, learned counsel again
relied on the decision of the Hon'ble Supreme Court in the case of
Usha Balashaheb Swami and Ors. vs. Kiran Appaso Swami
and Ors. (supra).
12. Having regard to the facts and circumstances and
submissions made on behalf of the parties, the limited questions
which arise in this case is whether the proposed amendment seeking
deletion of major portion of paragraph no.3 of written statement
could be said to be withdrawal of statement and whether it would
prejudicially effect the other side and the same is highly belated.
Patna High Court C.Misc. No.731 of 2018 dt.11-01-2024
13. The petitioner/defendant no.1 wants to delete the portion
of paragraph no.3 of his additional written statement which reads as
under:-
Patna High Court C.Misc. No.731 of 2018 dt.11-01-2024
14. I find merit in the submission of learned counsel for
the petitioner that what is being sought to be deleted concerns
a point of law and it ought not to be the part of the pleadings, to
Patna High Court C.Misc. No.731 of 2018 dt.11-01-2024
begin with. Further, the portion sought to be deleted on a bare
perusal read with earlier written statement, shows some
dispute regarding the assignment of certain property in favour
of the plaintiff/respondent no.1.
15. I fail to understand how the aforesaid amendment is
going to cause prejudice to the plaintiffs/respondents.
Moreover, if the amendment is not allowed, two sets of
pleadings, which are contradictory to each other, would come
on record and cause unnecessary confusion and will cause
hindrance in just and proper disposal of the dispute before the
learned lower court. Moreover, it cannot be said to be
withdrawal of admission because what has been stated in the
additional written statement was with regard to certain issues
involving succession and ownership rights of a female Hindu.
It cannot be considered admission and the defendant is within
his rights to withdraw the same and the decision of Hon'ble
Supreme Court in the case of Usha Balashaheb Swami and
Ors. vs. Kiran Appaso Swami and Ors., reported in (2007) 5
SCC 602, supports the contention of the learned counsel for
the petitioner and paragraph nos. 21 and 22 of the said
decision read as under:-
"21. As we have already noted herein earlier
Patna High Court C.Misc. No.731 of 2018 dt.11-01-2024
that in allowing the amendment of the written
statement a liberal approach is a general view
when admittedly in the event of allowing the
amendment the other party can be compensated
in money. Technicality of law should not be
permitted to hamper the courts in the
administration of justice between the parties. In
L.J. Leach & Co. Ltd. v. Jardine Skinner & Co.
[AIR 1957 SC 357] this Court observed that the
courts are more generous in allowing
amendment of the written statement as the
question of prejudice is less likely to operate in
that event".
In that case this Court also held that the
defendant has right to take alternative plea in
defence which, however, is subject to an
exception that by the proposed amendment the
other side should not be subjected to serious
injustice.
22. Keeping these principles in mind, namely,
that in a case of amendment of a written
statement the courts would be more liberal in
allowing than that of a plaint as the question of
prejudice would be far less in the former than
in the latter and addition of a new ground of
defence or substituting or altering a defence or
taking inconsistent pleas in the written
statement can also be allowed, we may now
proceed to consider whether the High Court
was justified in rejecting the application for
amendment of the written statement."
Patna High Court C.Misc. No.731 of 2018 dt.11-01-2024
16. It has been submitted on behalf of the respondents
that the amendment has been moved at a belated stage when
the trial has commended and evidence has been closed. For
just and proper disposal and other respective cause of
substance, amendment can be allowed even at a belated stage
as held in the case of Surender Kumar Sharma Vs. Makhan
Singh, reported in (2009) 10 SCC 626. Further, the plain
language of Order VI Rule 17 shows amendment can be
allowed at any stage as may be necessary for determining the
real questions in controversy between the parties.
In the light of discussion made so far, I am of the
view that the decisions cited on behalf of the respondents are
not of much help to the cause of respondents and are
distinguishable on facts.
17. In view of the aforesaid discussion, I think the
learned trial court failed to exercise its jurisdiction properly
and I am of the considered opinion that the impugned order
needs modification to the extent that proposed amendment at
paragraph no.3 of the petition dated 23.11.2015 which was
rejected by the learned court below, needs to be allowed and
hence the amendment petition of the petitioner before the
learned court below is allowed in its entirety subject to
Patna High Court C.Misc. No.731 of 2018 dt.11-01-2024
payment of cost of Rs. 50,000/-. The impugned order dated
12.02.2018 passed by learned Sub Judge-IInd, Bhabhua in
Title Suit No. 90 of 2003 stands modified to the aforesaid
extent only.
18. Accordingly, the instant petition stands allowed.
19. However, it is made clear that this Court has not
expressed any opinion on the merits of the case and whatever
has been discussed is only for the purpose of disposal of the
present petition and would not cause prejudice to any party.
(Arun Kumar Jha, J)
balmukund/-
AFR/NAFR AFR
CAV DATE 19.12.2023
Uploading Date 11.01.2024
Transmission Date NA
