Patna High Court
Thakur Prasad vs Upendra Nath Verma And Ors on 19 September, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.692 of 2016
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Thakur Prasad, Son of Late Haliwat Pandey, Resident of Mouja Mudla, P.O.
Mudla, P.S. Ramgarhwa, District East Champaran, at Present Saving Club
Road, Bhawanipur Zirat, Motihari
... ... Petitioner/s
Versus
1. Upendra Nath Verma, Son of Late Haliwat Pandey Resident of Village and
P.O. Mudla, P.S. Ramgarhwa, District East Champaran
2. Jitendra Nath Verma, Retired Assistant Director, Postal Department Son of
Late Haliwat Pandey Resident of Village and P.O. Mudla, P.S. Ramgarhwa,
District East Champaran
3. Satyendra Kumar Son of Late Most. Nand Kishori Devi, Widow of Late
Vidya Nand Prasad Resident of Vidya Sadan 195, Abhiyanta Nagar, West
Baily Road, Danapur, Patna
4. Shailendra Kumar Verma Son of Late Most. Nand Kishori Devi, and Vidya
Nand Prasad resident of Supriya Chhawni Mian Road, At and P.S. Bettiah,
District West Champaran
5. Mridula Verma Wife of Suresh Sharan Verma resident of Raj Palace
Campus, At and P.S. Bettiah, District West Champaran
6. Most. Nilam Verma wife of Anirudh Prasad resident of Shantibagh, Pandey
Tola, Ward No. 22, At P.O. Narkatiyaganj, District West Champaran
7. Renu Sinha Wife of Diwakar Prasad Sinha resident of Vishwanathpur
Dumra, P.O. Vishwanathpur Dumra District Sitamarhi
8. Suman Srivastava Wife of Rajendra Kumar Srivastava resident of House No.
166,7 Rinbows, Prabhu Prempuram , East Block, Near Gargi Gas Godown,
At and P.O. Ambala Cant. Haryana
9. Rashmi Kumari Wife of Chandra Kishore Prasad Resident of Custom
Quarters, Near Hotel Lake View, At and P.O. Motihari, District East
Champaran
10. Vaidehi Sinha Wife oif Vijay Kumar Sinha Resident of Radha Bhavan,
Christian Quarters, West of Sant High School, At and P.S. and P.O. Bettiah,
District West Champaran
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Lala Sachindra Kumar, Advocate
Mr. Ashok Kumar Sinha No.2, Advocate
For the Respondent 1 : Mr. Samir Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 19-09-2024
Heard learned counsel for the petitioner and learned
Patna High Court C.Misc. No.692 of 2016 dt.19-09-2024
2/7
counsel for the respondent no.1 and I intend to dispose of the
present petition at the stage of admission itself.
2. The instant petition has been filed under Article 227
of the Constitution of India for setting aside the order dated
20.05.2016
passed by learned Sub Judge- 8, Motihari in
Partition Suit No. 214 of 2005 whereby and whereunder the
learned trial court rejected the petition filed by the petitioner
under Order 6 Rule 17 of the Civil Procedure Code (hereinafter
referred to as the 'Code').
3. The learned counsel for the petitioner submits that
the petitioner is defendant no.1 whereas respondent no.1 is
plaintiff before the learned trial court and other respondents are
also defendants. The plaintiff/respondent no.1 filed Partition
Suit No. 214 of 2005 before the learned Sub Judge, Motihari
seeking partition of joint family property claiming 1/4th share in
the Schedule III property and 3/10th share in Schedule II
property. The defendant no.1/petitioner filed written statement
and contested the suit. The defendant/respondent no.2 also filed
a separate written statement. The original defendant no.3 died
leaving behind the heirs, who are respondent nos. 3 to 10. The
defendant/respondent no. 4 Shailendra Kumar filed a separate
written statement. The learned counsel further submits that
Patna High Court C.Misc. No.692 of 2016 dt.19-09-2024
during the pendency of the said partition suit, the petitioner filed
an application on 24.11.2015 under Order 6 Rule 17 of the Code
making prayer for incorporating certain amendments in the
written statement. Rejoinders were filed and the learned trial
court, after hearing the parties, rejected the amendment petition
vide order dated 20.05.2016.
4. The learned counsel for the petitioner further
submits that the impugned order is not sustainable as the learned
trial court arbitrarily rejected the proposed amendments in the
written statement on the ground that the amendments have been
filed after much delay. The learned counsel further submits that
the amendments are not going to change the nature of suit and
the court should be liberal in allowing the amendments. The
learned counsel further submits that the Hon'ble Supreme Court
in the cases of Ragu Thilak D. John v. S. Rayappan, reported
in AIR 2001 SC 699 and B.K. Narayana Pillai v.
Parameswaran Pillai, reported in AIR 2000 SC 614 held that if
the other sides could be compensated in terms of cost, the
amendments should be allowed even after delay. The learned
counsel further submits that the plaintiff/respondent no.1 has not
included other joint family property standing in his name or in
the name of respondent no.2 or in the name of their sons. The
Patna High Court C.Misc. No.692 of 2016 dt.19-09-2024
plaintiff/respondent no.1 has not even made the son as a party in
the suit. The self acquired property of the son of the defendant
no.1/ petitioner has been included in the suit property in the
plaint. But the son of the petitioner has not been made party.
Thus, learned counsel submits that the impugned order needs to
be set aside and the amendment petition is required to be
allowed.
5. On the other hand, learned counsel for the
respondent no.1 vehemently opposes the submission made on
behalf of the petitioner. The learned counsel further submits that
there is no infirmity in the impugned order. The amendment
petition has been filed after 11 years of filing of the written
statement and in the meantime, twice amendments were allowed
by the court both in the plaint and the written statement and
even then the petitioner did not bring about that amendment at
the first instance. The learned counsel further submits that the
petitioner wants to bring amendments by adding the property
which are not the suit properties and prayed for treating his
claim as counter claim which could not be allowed. The learned
counsel further submits that while seeking amendment at serial
numbers 1, 3 and 4 in the amendment petition, the petitioner
wants to make claim against the property of respondent nos. 1, 2
Patna High Court C.Misc. No.692 of 2016 dt.19-09-2024
& 3 which are not the part of the suit property. The learned
counsel further submits that through the amendment petition,
the petitioner wants to make amendment even in the plaint
against the provisions of law. Thus, the learned counsel submits
that the instant petition has got no merit and the same may be
dismissed.
5. I have given my thoughtful consideration to the
rival submission of the parties as well as facts and
circumstances of the case.
6. From perusal of impugned order, I find that the
amendment petition has not been rejected merely on the ground
of delay. The learned trial court has discussed the amendments
sought to be brought on record on behalf of the petitioner and
rejected the same with a reasoned order. So far as the
amendment at serial numbers 1, 3 and 4 are concerned, the
petitioner has put his counter claim mentioning about various
properties which are ancestral or purchased with the joint family
fund and gave details of such properties and sought relief of his
1/3 share in the properties mentioned in Schedule I of the
written statement after amendment. The defendant also denies
the claim of defendant no. 3 in the property so mentioned
through proposed amendment at serial numbers 1 & 3. It is
Patna High Court C.Misc. No.692 of 2016 dt.19-09-2024
settled proposition of law that the petitioner is required to make
counter claim under Order 8 Rule 6A of the Code satisfying the
rules relating to filing of plaint and before written statement
could be treated as a counter claim, it needs to satisfy the rule
prescribed in this regard. Further counter claim can be set up
only against the claim. If the plaintiff has not mentioned about
the properties as claimed by the defendant/petitioner, the
defendant/petitioner cannot insist for acceptance of his schedule
for partition. The counter claim cannot be made beyond the
claim of the plaintiff. The defendant/petitioner has also sought
adjudication of his dispute with defendant no. 3, but inter se
dispute of the defendants could not be settled in such manner in
a partition suit. Though the courts are not supposed to look into
the merits of the proposed amendments, still only those
amendments could be allowed which are necessary for
determination of real controversy between the parties in terms
of Order 6 Rule 17 of the Code. Therefore, the amendments at
serial numbers 1, 3 and 4, which have no relevance to the
controversy in hand, could not be permitted. The other two
amendments at serial numbers 2 and 5 sought by the
defendant/petitioner pertains to the plaint of the plaintiffs. Under
Order 6 Rule 17 of the Code, a party can make prayer for
Patna High Court C.Misc. No.692 of 2016 dt.19-09-2024
amendment in his pleading and such party cannot seek
amendment of pleading of other side by making application
under Order 6 Rule 17 of the Code. Such prayer is beyond the
purview of Order 6 Rule 17 of the Code.
7. Therefore, I am of the considered opinion that the
learned trial court has rightly rejected the amendment
application of the defendant/petitioner and there is no infirmity
in the order dated 20.05.2016 and hence, the same is affirmed.
8. As a result, the instant petition stands dismissed.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 24.09.2024
Transmission Date NA
