Patna High Court
Rajeshwari Devi vs Md. Kapil And Anr on 4 January, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1539 of 2018
======================================================
Rajeshwari Devi Wife of Rameshwar Prasad Sah Resident of Uttar Tola,
Nathnagar, Police Station- Nathnagar, District- Bhagalpur.
... ... Petitioner/s
Versus
1. Md. Kapil, Son of Late Md. Aziz Resident of Uttar Tola, Nathnagar, Police
Station- Natnagar, District- Bhagalpur.
2. Md. Shamim Son of Md. Aziz Resident of Uttar Tola, Nathnagar, Police
Station- Natnagar, District- Bhagalpur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Praveen Kumar, Advocate.
For the Respondent/s : Mr. Ram Pravesh Nath Tiwari, Advocate.
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 04-01-2024
Heard learned counsel for the petitioner as well as
learned counsel for the respondents.
2. Matter is at the stage of admission and with the
consent of the parties, I intend to dispose of the petition at the
stage of admission itself.
3. The present petition has been filed for setting
aside the impugned order dated 13th of April, 2018 passed by
the learned Munsif-II, Bhagalpur, passed in Title Suit No. 75
of 2015 whereby and whereunder the application of the
petitioner under Order VI, Rule 17 of the Code of Civil
Procedure has been dismissed.
Patna High Court C.Misc. No.1539 of 2018 dt.04-01-2024
4. The facts of the case as it appears from the
records is that the petitioner is plaintiff before the learned
court below and she has filed the suit against the respondent
who was defendant for delivery of possession of the suit land.
The claim of the plaintiff-petitioner is based on a registered
sale deed executed in her favour by one Pawan Kumar Sah on
10th of August, 1981. Further case of the petitioner is that the
land was mutated in Municipal records in her favour. The
defendants have dispossessed and encroached upon the
petitioner-plaintiff from a portion of the land as mentioned in
Schedule 'B' and Schedule 'C' of the plaint.
5. The defendants appeared and filed the written
statement stating that they are in possession of the property in
question and there is pucca construction upon the suit land
which is claimed by the plaintiff and the plaintiff-petitioner
wants to create the litigation by creating forged documents.
The plaintiff-petitioner filed an amendment petition for
correcting some portion of the plaint by deleting and adding
certain words stated to be typographical error and also to
amend the boundary of the suit land. However, the learned
trial court rejected the amendment petition recording a finding
Patna High Court C.Misc. No.1539 of 2018 dt.04-01-2024
that the amendment petition has been filed belatedly and the
same will change the nature of the suit land. Thereafter, the
plaintiff-petitioner filed Misc. Appeal No. 211 of 2018 before
the learned District Judge, Bhagalpur, but the same was
withdrawn as it was not maintainable.
6. Aggrieved by the order of the learned Munsif-II,
Bhagalpur, the petitioner has filed the instant petition.
7. Learned counsel for the petitioner submits that
the learned court below has erroneously recorded the finding
that the plaintiff wants to change the boundary of the suit land
and it will result in change in the nature of the suit. Learned
counsel further submits that there is no question of change in
the nature of the suit since by the amendment sought by the
petitioner, only certain typographical mistakes are sought to
be corrected. Some errors have crept in the details of the suit
property and the same needs to be rectified. The learned
counsel for the plaintiff-petitioner took the court through the
amendment petition which was filed before the learned trial
court to stress the fact that the suit has been filed for recovery
of possession and change in the details of the property or the
boundary, will have no effect on the nature of the suit.
Patna High Court C.Misc. No.1539 of 2018 dt.04-01-2024
Learned counsel also submits that another reason given by the
learned trial court was that the petition for amendment has
been filed quite belatedly, as written statement has already
been filed on behalf of the defendants and the plaintiff has
produced four witnesses in support of his case. But
amendment could be made at any stage of the proceeding if it
is necessary for the purpose of proper adjudication of the
dispute. Learned counsel next submits that by allowing the
amendment, no serious prejudice would be caused to the
defendants. On the other hand, plaintiff-petitioner would be
seriously prejudiced if the amendment is not allowed.
8. Learned counsel appearing on behalf of the
defendants/respondents vehemently contended that there is no
infirmity in the impugned order and the petitioner has been
trying to delay the disposal of the case. Learned counsel
further submits that change in the boundary of the suit
property, will change the nature of the suit. The amendments
sought are vague and has been filed at a belated stage without
explaining the delay.
9. Perused the record.
Patna High Court C.Misc. No.1539 of 2018 dt.04-01-2024
10. Having regard to the contention of the parties, it
would be beneficial to look into the amendment petition. The
plaintiff-petitioner has sought the following amendments:-
(i) That in 3rd line of para-2
of the plaint, the plaintiff wants to add
"during survey".
(ii) That the plaintiff wants
to delete in the first line of Schedule
'B' 4' x 3'' and substitute 9' and 4"
and in third line wants to add the part
of 915 K and in the 4th line wants to
add Ward No. 23 and wants to delete in
southern boundary Hari Saw and
substitute plaintiff and in the western
boundary wants to delete Md. Ajij and
substitute Md. Kapil
(iii) That in Schedule 'C' the
plaintiff wants to add in the third line
the part of 915 K and substitute old
Ward No. 23 after 8.
(iv) That the plaintiff wants
to delete in the boundary of Schedule
'C' the plaintiff wants to delete road
and substitute part of Schedule land
and wants to delete Hari Saw in
Southern boundary and substitute
plaintiff and wants to delete Pawan
Patna High Court C.Misc. No.1539 of 2018 dt.04-01-2024
Kumar Sah and substitute Plaintiff in
eastern boundary and wants to delete
plaintiff and substitute Md. Shamim in
western boundary.
11. Plain reading of the amendment shows
amendments having been sought are for deleting and
correcting the area or boundary of the suit property as
mentioned in Schedule 'B' and 'C'.
12. The suit has been filed for recovery of
possession of the suit property as mentioned in Schedule 'B'
and 'C'. Further perusal of the record shows even after change
of area or boundary, the nature of the suit would not change
for the simple reason that it will remain the suit for recovery
of possession and the boundary is already in dispute as it
appears from the written statement of the defendants.
13. The Hon'ble Supreme Court in the case of Life
Insurance Corporation of India Vs. Sanjeev Builders
Private Lmited and Anr. Reported in 2022 SCC OnLine SC
1128, in Paragraph-70, has given certain guidelines to deal
with the matter. It reads as under:-
" 70. Our final conclusions may
be summed up thus:
Patna High Court C.Misc. No.1539 of 2018 dt.04-01-2024
(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 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,
Patna High Court C.Misc. No.1539 of 2018 dt.04-01-2024
(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 mala fide, 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 a hypertechnical
approach, and is ordinarily
Patna High Court C.Misc. No.1539 of 2018 dt.04-01-2024
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.
Patna High Court C.Misc. No.1539 of 2018 dt.04-01-2024
(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
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
Patna High Court C.Misc. No.1539 of 2018 dt.04-01-2024
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.
(See Vijay Gupta v. Gagninder Kr.
Gandhi, 2022 SCC OnLine Del
1897)".
14. In the light of the fact that the amendment
sought to be introduced are quite relevant for the purpose of
disposal of the dispute between the parties as the amendments
are required for effective and proper adjudication of the
controversy between the parties, the same could be allowed.
So far as the amendments being brought at belated stage is
concerned, the defendants could be compensated in terms of
money and at the same time defendants are also entitled to file
additional written statement after the amendment is allowed.
15. Further, delay in making application on its own
could not be a ground for rejection of the application unless
serious prejudice would be caused to be other party and
accrued rights are taken away as a result of amendment. I do
not think the same is true for present case. Reliance could be
Patna High Court C.Misc. No.1539 of 2018 dt.04-01-2024
placed on the decision of Life Insurance Corporation of
India (supra). As a result the instant petition is allowed and
the order dated 13.4.2018 passed by the learned Munsif-II,
Bhagalpur, passed in Title Suit No. 75 of 2015 is set aside and
application for amendment dated 15.3.2018 is also allowed
subject to cost of Rs.5,000/- (Rupees Five thousand) to be
paid to the defendants within a month of receipt/production of
a copy of this order.
16. Learned court will ensure that the defendants
are given ample opportunity to rebut the contention of
plaintiff so introduced by amendment, if they so desired.
(Arun Kumar Jha, J)
S.Ali/-
AFR/NAFR NAFR
CAV DATE N.A.
Uploading Date 10/01/2024
Transmission Date
