Patna High Court
Abdullah Khan vs Meena Khatoon And Ors on 15 January, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1089 of 2017
======================================================
Abdullah Khan Son of Abdul Jaleel Khan, resident of Village-Mansa Raut,
P.S. Bettiah, Mufassil, P.O.-Barwat Pasrain Mansa Raut and District-West
Champaran.
... ... Petitioner/s
Versus
1. Meena Khatoon Widow of Rahmat Khan
2. Reshma Parveen, Daughter of Late Rahmat Khan, Both Resident of Village-
Mansa Raut, P.S. Bettiah Mufassil, P.O.-Barwat-Pasram Mausa Raut and
District-West Champaran.
3. Zahangir Khan, Son of Late Rahmat Khan, Resident of Village-Mansa Raut,
P.S.-Bettiah Muffasil, P.O.-Barwat-Pasrain Mansa Raut and District-West
Champaran, at OPresent residing in the rented Building of Rabindra Singh,
House no. 173, Mavi Mohall Tek Khand Okhla Face-1, New delhi.
4. Samsun Nessa, Daughter of Late Rahmat Khan and Wifeof Nizamuddin
Khan, Resident of Village-Chhawani, near-Western Rai Gumti, P.S.-Bettiah
Town, P.O.-Bettiah Town and District-West Champran.
5. Gazala Parveen, Daughter of Late Rahmat Khan, Resident of Village-Manda
Raut, P.S. Bettiah Mufassil, P.O.-Barwat Parsrain Mansa Raut anmd District-
West Champaran.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Md. Abu Haidar, Advocate
Md. Abyu Shajar, Advocate
Mr. Asad Zahidi, Advocate
For the Respondent/s : Mr. Bimlesh Kumar Pandey, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 15-01-2024
Heard learned counsel for the parties on the point of
admission and I intent to dispose of the instant petition at the
stage of admission itself.
2. The petitioner, who was defendant 2 nd party before
the learned trial court, has challenged the order dated
Patna High Court C.Misc. No.1089 of 2017 dt.15-01-2024
2/10
19.05.2017
passed by learned Sub Judge-VII, West Champaran
at Bettiah in Title Suit No. 142 of 2011, whereby and
whereunder the application filed by the plaintiffs/respondents
under Order VI, Rule 17 of the Code of Civil Procedure
(hereinafter referred to as 'CPC') has been allowed.
3. The case of the parties, as it appears from the
record, is that the plaintiffs/respondents have filed Title Suit No.
142 of 2011 for partition to the extent of 3/10th of their share
out of Schedule II land and buildings as also to appoint Pleader
Commissioner. At the same time, plaintiffs also sought a
direction to allow the plaintiffs to avail the right under Section 4
of the Partition Act with direction to defendant 2 nd party to
execute sale deed of conveyance in respect of property to the
extent of share of his vendor, defendant no. 1. After the
appearance of both sides the evidence was closed and argument
has also been concluded. Thereafter, an amendment petition was
filed by the plaintiffs on 15.05.2017. A rejoinder to the
amendment petition was filed by the defendants. The said
petition was allowed by the learned trial court which has been
assailed in the instant petition.
4. Learned counsel for the petitioner submits that the
learned trial court erred while allowing the petition for
Patna High Court C.Misc. No.1089 of 2017 dt.15-01-2024
amendment. The learned trial court did not take into account the
fact that the petition has been filed at much belated stage when
the evidence of the parties was closed and argument was already
heard and the matter was to be finally decided. The learned trial
court also did not take into consideration the fact that there was
no explanation for filing amendment petition at so belated stage.
Learned counsel further submits that through the amendment, a
new case is sought to be made out and basic nature of the suit
land is tried to be changed. The amendment is time barred. The
amendment would take away the right accrued to the petitioner
with passage of time. Thus, the impugned order is not
sustainable and the same may be set aside. Learned counsel has
relied on a decision in the case of Shiv Kumari Kuar & Ors. Vs.
Anil Bhagat & Ors. reported in 2023(4) PLJR 146 to stress the
point that there was no explanation of due diligence for filing
amendment petition at the stage of final argument and further in
that case also the mistake of the typist was shown as a reason.
5. The contention of learned counsel for the petitioner
has been vehemently opposed by learned counsel appearing on
behalf of the respondents. Learned counsel for the respondents
submits that only a typographical error was sought to be
corrected since in paragraph 3 of the plaint instead of 6 dhurs,
Patna High Court C.Misc. No.1089 of 2017 dt.15-01-2024
16 dhurs has been mentioned whereas in the Schedule of the
plaint only 6 dhurs was mentioned so there was contradiction
between the pleading of Schedule of the plaint and the body of
the plaint. This contradiction was sought to be removed by filing
amendment petition and learned trial court has rightly allowed
the same. Learned counsel further submits that on account of
delay, a cost of Rs.800/- was imposed upon the plaintiffs and the
defendants were also given liberty to file additional written
statement so there was no infirmity in the impugned order and
hence, the instant petition may be dismissed. Learned counsel
has relied on a decision of 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 wherein the Hon'ble Supreme Court has held
that all amendments are to be allowed which are necessary for
determining the real question in controversy provided it does
not cause injustice or prejudice to the other side. In the present
case, the defendants have also failed to show how any prejudice
was caused to them or injustice would occur on account of
allowing the amendment.
6. Perused the records.
7. Order 6 Rule 17 of the CPC provides amendment in
Patna High Court C.Misc. No.1089 of 2017 dt.15-01-2024
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 unless amendment sought is
time barred or amendment changes the nature of the suit and it
causes serious prejudice to the other party. It goes without
saying that the amendment can be disallowed if it changes the
nature of the suit or amendment is with malafide intention or it
affects the right of the other side. The Hon'ble Supreme Court
has time and again held that the court should not adopt hyper
technical approach in considering the amendment petition.
In the present case the amendment sought to be
introduced is with regard to correction in the area of the suit
land. It is not that the boundaries of suit property is being
changed. Further if at one place in plaint certain area has been
mentioned with different boundaries and at another place in the
plaint, same position is stated to have different area, such
contradictory fact in the plaint may cause confusion and it
would not be possible for the trial court to come to a just and
proper decision. Further the claim of the petitioner that the
amendment would change the nature of the suit, is not
sustainable as it is a suit for partition and even after change of
the area, the suit will remain a suit for partition. It's nature
Patna High Court C.Misc. No.1089 of 2017 dt.15-01-2024
would not change. So far as the contention of learned counsel
for the petitioner is concerned that the amendment has been
sought at a belated stage should not be come in way of
adjudication of real controversy between the parties, if the same
can be compensated in terms of money so the amendment at a
belated stage can also be allowed. In the instant case, the
amendment has been allowed subject to cost. In this regard,
reference can be made to the decision cited by learned counsel
for the respondents in the case of Life Insurance Corporation
of India Vs. Sanjeev Builders Private Limited and Anr (supra).
In its paragraph-70 certain guidelines have been given regarding
scope of Order 6 Rule 17 of the CPC and the said paragraph
reads as under:-
"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
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
Patna High Court C.Misc. No.1089 of 2017 dt.15-01-2024
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
(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
Patna High Court C.Misc. No.1089 of 2017 dt.15-01-2024
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
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
Patna High Court C.Misc. No.1089 of 2017 dt.15-01-2024
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."
8. In the light of law as propounded by the Hon'ble
Supreme Court the amendment sought by the plaintiffs cannot
be said to hit by Para 70(iv) of the above cited decision and for
this reason the reliance placed by the learned counsel for the
petitioner on Shiv Kumari Kuar (supra) is of no help.
9. In view of the aforesaid discussions, I do not find
any infirmity in the impugned order as the same has been passed
after consideration of all the aspects of the matter and, therefore,
the same is affirmed. However, the petitioner will have the
liberty to rebut the amendment.
10. Hence, I do not find any merit in the instant petition
and, accordingly, the same is dismissed.
11. Since it is an old matter, the learned trial court is
directed to dispose of the same within six months from the date
of receipt/production of a copy of this order.
12. The petitioner/defendant has already been granted
Patna High Court C.Misc. No.1089 of 2017 dt.15-01-2024
a liberty for filing additional written statement. If such liberty
has not been availed till date, the learned trial court may allow
the same considering the facts and circumstances of the case.
(Arun Kumar Jha, J)
DKS/-
AFR/NAFR N.A.F.R.
CAV DATE N.A.
Uploading Date 18.01.2024
Transmission Date N.A.
