Mosmat Raadhika Kuar vs Shatrudhan Singh
2024 Latest Caselaw 250 Patna

Patna High Court

Mosmat Raadhika Kuar vs Shatrudhan Singh on 11 January, 2024

Author: Arun Kumar Jha

Bench: Arun Kumar Jha

          IN THE HIGH COURT OF JUDICATURE AT PATNA
            CIVIL MISCELLANEOUS JURISDICTION No.1307 of 2017
     ======================================================
1.1. Bharat Singh Son of Late Raja Singh and Radhika Kuar, residents of Village
      - Gamhariya Kala, P.O. - Gauri Shankar Ke Bangra via - Jalalpur, P.S.
      Jalalpur, District-Saran. At present 48H/41, Pottery Road, Tangra, Kolkata.
1.2. Dilip Singh son of Late Raja Singh and Radhika Kuar, residents of Village -
     Gamhariya Kala, P.O. - Gauri Shankar Ke Bangra via - Jalalpur, P.S.
     Jalalpur, District-Saran.
1.3. Upendra Singh, son of Late Raja Singh and Radhika Kuar, residents of
     Village - Gamhariya Kala, P.O. - Gauri Shankar Ke Bangra via - Jalalpur,
     P.S. Jalalpur, District-Saran.
1.4. Dhananjay Singh, son of Late Raja Singh and Radhika Kuar, residents of
     Village - Gamhariya Kala, P.O. - Gauri Shankar Ke Bangra via - Jalalpur,
     P.S. Jalalpur, District-Saran.
1.5. Chinta Devi, Daughter of Late Raja Singh and Radhika Kuar, residents of
     Village - Gamhariya Kala, P.O. - Gauri Shankar Ke Bangra via - Jalalpur,
     P.S. Jalalpur, District-Saran.
1.6. Uma Kuar, daughter of Late Raja Singh and Radhika Kuar, residents of
     Village - Gamhariya Kala, P.O. - Gauri Shankar Ke Bangra via - Jalalpur,
     P.S. Jalalpur, District-Saran.
1.7. Mira Devi, Daughter of Late Raja Singh and Radhika Kuar, residents of
     Village - Gamhariya Kala, P.O. - Gauri Shankar Ke Bangra via - Jalalpur,
     P.S. Jalalpur, District-Saran.
                                                              ... ... Petitioner/s
                                        Versus
1. Shatrudhan Singh son of Late Jyoti Singh, residents of Village - Gamhariya
     Kala, P.S. Jalalpur, P.O. - Gauri Shankar Ke Bangra, Via - Jalalpur, Dist -
     Saran.
2.   Harendar Singh
3.   Prabhunath Singh Sons of Late Jyoti Singh
4.    Radha Kishun Singh Son of Late Jyoti Singh Respondent nos. 1 to 4
      residents of Village - Gamhariya Kala, P.S. Jalalpur, P.O. - Gauri Shankar Ke
      Bangra, Via - Jalalpur, Dist - Saran.
                                                                  ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s   :        Mr. Nagendra Rai, Advocate
                                     Mr. Navin Nikunj, Advocate
                                     Mr. Koshalendra Rai, Advocate
     For the Respondent/s   :        Mr.
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
     CAV JUDGMENT

Date : 11-01-2024 The petitioners have challenged the order dated 19th Patna High Court C.Misc. No.1307 of 2017 dt.11-01-2024

July, 2017 passed by the learned Additional District Judge- 1 st

Chhapra in Title Appeal No. 122 of 2012 whereby the

Amendment Petition dated 08.09.2016 of the original

plaintiffs/petitioners for amendment in the plaint regarding

correction in the boundary of the suit property has been rejected.

02. The petitioners are the legal heirs of original

petitioner who was plaintiff before the learned trial court in Title

Suit No. 108 of 1997 who filed the suit against the respondents

who were defendants in the court of learned Munsif-I, Chhapra

seeking declaration of her title over the suit property and

recovery of possession after removal of construction illegally

made by the defendants/respondents. The case of the original

plaintiffs/petitioners before the learned trial court was that suit

property bearing RS Plot No. 435, measuring 01 katha 7 dhurs

appertaining to Khata No. 89 situated in Village-Gamhariya

Kalan (Bangda) P.S.-Jalalpur, District-Saran, stood recorded in

the name of Bhajan Hazam. He died leaving behind his son

Shivdhari Thakur. The suit plot was sold to Rama Singh vide

registered sale deed dated 18.09.1925 by Shivdhari Thakur.

However, due to mistake of scribe only 01 katha 05 dhurs got

mentioned in the sale-deed but the entire plot measuring 01

katha 07 dhurs was sold to Rama Singh. Rama Singh died Patna High Court C.Misc. No.1307 of 2017 dt.11-01-2024

leaving behind his two sons Raja and Rajendra. These two sons

partitioned the aforesaid plot and Northern 13 and ½ dhurs

came in share of Rajendra Singh and Southern 13 and ½ dhurs

fell in the share of Raja Singh. The sons of Raja Singh resides

outside and their mother, the widow of Raja Singh, the plaintiff,

filed the suit as Karta and Manager of joint family of heirs of

Raja Singh. Further case of the plaintiffs/petitioners was that the

defendants at the instigation of descendants of Rajendra Singh

encroached upon northern 07 and ½ dhurs out of the share of

Raja Singh in Plot No. 435 on 11.07.1997 and started making

construction over the land. This encroached property of 7½

dhurs is the subject matter of dispute.

03. After appearance of defendants/respondents in

the title suit, they filed their written statement and contested the

suit. The defendants claimed that Rama Singh was eldest among

08 brothers. One of them being Jyoti Singh, the father of the

defendants and the suit plot was purchased in 1925 in the name

of Rama Singh as Karta from joint family fund and it was joint

family acquisition. The defendants further claimed that after

private partition amongst Rama Singh and his brother, the enire

suit plot fell into the share of Jyoti Singh, the ancestor of the

defendants, and the plaintiffs/petitioners' claim about their title Patna High Court C.Misc. No.1307 of 2017 dt.11-01-2024

and encroachment is not correct. But after contest, the learned

trial court decreed the plaintiffs' suit and against the judgment

and decree of the learned trial court, the defendants/respondents

filed Title Appeal No. 122 of 2012, which is pending before the

Court of learned Additional District Judge- 1st Chhapra. In the

said title appeal, an amendment petition was filed on 08.09.2016

by the original plaintiffs/petitioner for making correction in

southern boundary of the suit land by substituting the word

'plaintiff' instead of word 'Vidya Singh'. The

defendants/appellants filed a rejoinder on 20.10.2015, opposing

the amendment mainly on the ground that it was filed at belated

stage and would change the nature of the case. The learned first

appellate court, after hearing the parties, dismissed the

amendment petition vide order dated 19.04.2017.

04. Learned counsel for the petitioners submitted that

the order of the learned lower court is bad in the eye of law and

hence it is not sustainable. The learned court below erred while

holding that the proposed amendment will change the nature of

the disputed land. The learned first appellate court failed to

properly construe and interpret the plaint viz-a-viz the

amendment petition. The learned first appellant court did not

appreciate the fact that there is no change in the disputed land Patna High Court C.Misc. No.1307 of 2017 dt.11-01-2024

and only mistake in description of southern boundary is sought

to be corrected. Learned counsel further submitted that while

filing the plaint, the mistake occurred in describing the

boundary as while mentioning the boundary, the whole area of

land was considered where as after the disputed plot of 07 and

½ dhurs, it was the land of the plaintiffs/petitioners. The land of

Vidya Singh was situated after the total land of 01 katha 07

dhurs but the encroachment is on northern 07 and ½ dhurs of

land and just after it, there is land of the plaintiffs/petitioners

and at the southern boundary of the land of the

plaintiffs/petitioners, there is land of Vidya Singh. But due to

mistake, which was inadvertent, it has wrongly been mentioned

that after the encroached land in southern boundary, there is land

of Vidya Singh. Only this mistake is required to be corrected

and for this reason, the amendment petition under Order-6 Rule-

17 of the Code of Civil Procedure has been filed before the

learned appellate court. Learned counsel reiterated that the land

of Vidya Singh is situated in the south of the land of the

petitioners. Further, the appeal is continuation of the trial and

nature of suit would not change by this amendment. Thus, the

learned counsel submitted that the learned first appellate court

committed an error when it dismissed the amendment petition of Patna High Court C.Misc. No.1307 of 2017 dt.11-01-2024

the plaintiffs/petitioners and the impugned order is liable to be

set aside.

05. Perusal of record shows, despite a number of

opportunities, none appeared on behalf of the

respondents/defendants, though notices were held to be validly

served upon the respondents. However, from the copy of the

reply to the amendment petition before the learned first

appellate court, it appears that respondents opposed the

amendment petition stating it to be not maintainable and time

barred. The respondents/defendants in their reply have also

submitted that the proposed amendments have been made with

the intention to fill up the lacunae and no cogent ground has

been given. The respondents/defendants have further submitted

that the learned trial court has issued the decree on the basis of

boundary mentioned in the plaint and if the proposed

amendment was accepted, it would change the nature of the suit.

The respondents have further submitted that the disputed

property never belonged to the plaintiffs/petitioners and she

filed the suit as a test case before the learned trial court and the

same was decreed on technical ground, without the evidence of

the defendants. But during its trial, the plaintiffs did not bring

any amendment before the learned trial court in the ir haste and to Patna High Court C.Misc. No.1307 of 2017 dt.11-01-2024

deprive the defendants/appellants/respondents from adducing

evidences. The plaintiffs/petitioners had also filed Execution

Case No. 01 of 2012 in the court of learned Munsif-I, Chhapra

and due to wrong description of the suit property, the decree has

become infructuous. If the proposed amendment is allowed, the

valuable right accrued to the defendants/appellants for their

defence would come to an end.

06. From the record and submission made on behalf

of the parties, the issue which arises for consideration before

this Court is whether the dismissal of amendment petition of the

petitioners claimed to be under a bonafide mistake of

mentioning wrong boundary is wrong and the proposed

amendment does not change the nature of suit.

07. The learned first appellate court while rejecting

the prayer for amendment has mentioned the fact that while the

evidence of the plaintiffs/respondent/petitioners was being

recorded, the boundary of the disputed land was same as in

plaint, which has been mentioned in the decree. Further, the first

appellate court has also held that changing the boundary at this

stage would result in change the nature of the disputed land.

However, the suit has been decreed in favour of the

plaintiffs/petitioners and it means the contention of the Patna High Court C.Misc. No.1307 of 2017 dt.11-01-2024

petitioners have been upheld regarding their title upon the land

as well as the claim of encroachment. It was the case of the

plaintiffs/petitioners before the learned trial court that 27 dhurs

land got divided between two brothers in equal halves, the

husband of the original plaintiff got the southern portion of 13

and ½ dhurs of land. If the encroachment of 7 and ½ dhurs of

land is claimed on the northern portion of the share of the

original plaintiff, naturally, on the southern side of the said

portion, the boundary should show the property of the original

plaintiff. Moreover, the learned first appellate court while

considering the respective claim of the parties may also take this

fact into account.

08. So far as change in the nature of the suit is

concerned, I am unable to comprehend how changing the

boundary at the southern portion of the disputed land in the

given facts and circumstances could change the nature of the

suit. Moreover, the said boundary has not been admitted by the

defendants/respondents in their written statement. Even after

change in description of boundary, the suit of the plaintiffs would

remain a suit for declaration and recovery of possession . At the

same time, amendment cannot be rejected merely on the ground

of delay, if the said amendment is necessary to resolve the real Patna High Court C.Misc. No.1307 of 2017 dt.11-01-2024

controversy between the parties and the other parties could be

compensated in terms of money. In this regard, reliance could be

placed on the decision of Hon'ble Supreme Court in the case of

Surender Kumar Sharma v. Makhan Singh, reported in

(2009) 10 SCC 626. On both these counts, I do not think there is

much merit in the submission of learned counsel for the

respondents.

09. Order-VI Rule-7 of the Code of Civil Procedure

provides amendment in pleadings at any stage of the

proceedings, if the same might be necessary for the purpose of

determining the real questions in controversy between the

parties. Recently, the Hon'ble Supreme Court in the case of Life

Insurance Corporation of India Vs. Sanjeev Builders Private

Limited and Anr, reported in 2022 SCC OnLine SC 1128, in

Paragraph-70, has given a number of guidelines for allowing the

amendment in the following terms:-

"70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed Patna High Court C.Misc. No.1307 of 2017 dt.11-01-2024

which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side.

This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or Patna High Court C.Misc. No.1307 of 2017 dt.11-01-2024

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before Patna High Court C.Misc. No.1307 of 2017 dt.11-01-2024

commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.

10. Thus, the amendment can be disallowed only if it

causes injustice or prejudice to the other side otherwise, all

amendments are to be allowed subject to restriction imposed in

Paragraph No. 70-(iv) of the guidelines in the case of Life

Insurance Corporation of India Vs. Sanjeev Builders Private

Limited and Anr (supra).

11. Having regard to the discussion made

hereinbefore, I find and hold that the learned first appellate

court committed an error when it rejected the amendment

application of the plaintiffs/petitioners. Hence, the order dated

19th July, 2017 passed by the learned Additional District Judge-

1st Chhapra in Title Appeal No. 122 of 2012, rejecting the

amendment petition dated 08.09.2016 of the Patna High Court C.Misc. No.1307 of 2017 dt.11-01-2024

plaintiffs/petitioners, is set aside and the amendment petition is

allowed subject to payment of cost of Rs. 5,000/- to be paid to

the defendants/respondents within a month of

receipt/production of the copy of this order.

12. The learned first appellate court will also take

into consideration the fact that the respondents/defendants are

given ample opportunity to controvert/rebut the amendment

sought to be brought, if they so desired.

13. This Court has not expressed anything on the

merits of the case in any manner and whatever has been

observed, is only for the purpose of disposal of the present

petition and the learned first appellate court will not be

prejudiced by any of the observations made by this Court.

14. Accordingly, the present Civil Misc. petition

stands allowed.

(Arun Kumar Jha, J) Ashish/-

AFR/NAFR                NAFR
CAV DATE                19-12-2023
Uploading Date          11-01-2024
Transmission Date       N/A