Patna High Court
The Bihar State Board Of Religious ... vs Shri Ravi Jalan on 5 February, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.817 of 2022
======================================================
The Bihar State Board of Religious Trusts through its Chairman, Vidyapati
Marg, Patna, Bihar- 800001.
... ... Petitioner/s
Versus
1. Shri Ravi Jalan Son of Late Lok NathJalan Resident of Prakash Cotton Mill
Compound, Ganpat Rao Kadam Marg, Lower Parel, Mumbai- 13.
2. Shri RajendraJalan Son of Late Lok NathJalan Resident of Prakash Cotton
Mill Compound, Ganpat Rao Kadam Marg, Lower Parel, Mumbai- 13.
3. Shri Anil Jalana Son of Late Tola Ram Jalan Resident of Prakash Cotton
Mill Compound, Ganpat Rao Kadam Marg, Lower Parel, Mumbai- 13.
4. Shri Ashok Jalan Son of Late Tola Ram Jalan Resident of Prakash Cotton
Mill Compound, Ganpat Rao Kadam Marg, Lower Parel, Mumbai- 13.
5. Shri DilipJalan Son of - Late Champa Lal Jalan Resident of Prakash Cotton
Mill Compound, Ganpat Rao Kadam Marg, Lower Parel, Mumbai- 13.
6. Amitabh Jalan Son of- Late Dharam Chandra Jalan Resident of Prakash
Cotton Mill Compound, Ganpat Rao Kadam Marg, Lower Parel, Mumbai-
13.
7. Shri Vishnu Jalan Son of- Late GajanandJalan Resident of Prakash Cotton
Mill Compound, Ganpat Rao Kadam Marg, Lower Parel, Mumbai- 13.
8. Ravi Poddar Son of- Shri Shiv BhagwanPoddar Resident of- Mohalla-
Jawaharlal Road, under P.S.- Town P.O., P.O.- Town, District- Muzaffarpur,
Bihar- 842001.
9. DilipJalan Son of Late PasupatiJalan near TilakMaidan, P.O. and P.S.- Town
(Muzaffarpur), District- Muzaffarpur, The Secretary, SevaSanghNyas
Committee.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Shekhar Singh, Adv.
For the Respondent nos. 1 to 8 : Mr. Sanjeev Ranjan, Adv.
Ms. Astha Ananya, Adv.
For the Respondent no. 9 : Mrs. M. Chaterjee, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 05-02-2025
The instant petition has been filed for quashing the
order dated 28.06.2022 passed in Miscellaneous Case No. 43 of
2017 by learned Additional District Judge-XII, Muzaffarpur
whereby and whereunder one of the amendments sought on
behalf of the petitioner/opposite party no. 1 under Order VI
Patna High Court C.Misc. No.817 of 2022 dt.-05-02-2025
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Rule-17 read with Section 151 of the Code of Civil Procedure
(in short "the Code") has been refused.
2. Briefly stated facts which appear from the record
are that the petitioner, Bihar State Board of Religious Trusts
(hereinafter "the Board"), issued a notification contained in
Memo No. 2010 dated 07.10.2016 under Section 32 of the
Bihar Hindu Religious Trusts Act, 1950 (hereinafter "the Act")
constituting a Trust Committee for management of the affairs of
Seva Sangh Nyas Parshad, Saraiyaganj, Muzaffarpur which is a
public Trust registered with the Board vide Registration No.
3992. The respondents filed a Miscellaneous Case bearing No.
43 of 2017 dated 15.07.2017 before the learned District Judge,
Muzaffarpur under Section 32(3) of the Act, 1950 seeking the
following reliefs:-
"A. That upon consideration of the facts stated
above the court be pleased to set aside the
scheme so settled vide order dated 07.10.2016
as published in Bihar Gazette dated 26.04.2017
by the opp. Party with respect to Schedule-I of
the case application.
B. That the cost of the case be awarded to the
applicants.
C. That the court be pleased to grant any other
relief or reliefs to which the applicants be found
entitles."
Written objection was filed on behalf of the
petitioner/opposite party no. 1 on 15.03.2019. Finding certain
Patna High Court C.Misc. No.817 of 2022 dt.-05-02-2025
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typographical/factual errors, petitioner/opposite party no. 1 filed
an amendment petition under Order VI Rule 17 read with
Section 151 of the Code seeking the following amendments:
"1. That in line no. 9 of Para 5 of the Objection
after the word "was" the word "not" be added.
2. That after completion of Para 5 of the
Objection the following words be added Actually
the same was purchased from the then owner
namely Jauhar Chand in the name of Ram
KumarJalan (one of Trustees) by the trustees of
Seva Sangh Trust for Rs. 12500/- out of the trust
fund of Rs. 40000/- collected through
contribution from General Publicand the said
house and the lands belong to the trust. It is
worth to say that Ram Kumar Jalan had
beneficial interest in the same and this no fact
was also admitted by Ram Kumar Jalan in the
Trust Deed No.-2314 of 1949.
3. That in line no.-3 & 4 of para 20 of objection
the following words "and had captured of the
upper floor of the trust building" be deleted."
To it, the respondents/applicants filed an objection
petition. The respondent no. 9, who had filed an intervention
application to be added as opposite party in Miscellaneous Case
No. 43 of 2017, also filed an objection petition on 14.12.2019.
After hearing the parties, the learned Additional District Judge-
XII, Muzaffarpur passed an order dated 28.06.2022 whereby the
first two amendments have been allowed but the third
amendment has been rejected and the said order is under
challenge before this Court.
3. Learned counsel for the petitioner submits that the
Patna High Court C.Misc. No.817 of 2022 dt.-05-02-2025
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impugned order is bad in the eye of law as the learned trial court
has failed to appreciate the fact that the amendment sought on
behalf of the petitioner is formal in nature and will not change
the nature of the case. The learned trial court has further failed
to appreciate that the amendment has been sought at the initial
stage of trial and is in the interest of justice considering the
object of Order VI Rule 17 of the Code. It is settled proposition
of law that procedural provisions like amendment of plaint or
written statement and limitation should be interpreted to
advance the cause of justice and not to defeat it. All the rules
and procedures are hand maids of justice and the language
employed by the draftsmen of procedural law may be liberal or
stringent, but the fact remains that that object of prescribing
procedure is to advance the cause of justice. The learned trial
court has committed an error by rejecting the third amendment
on the ground that it negates admission regarding fact of
possession but the said amendment is not going to affect the
parties in any manner and it is nothing but seeking correction of
factual mistake which occurred while typing the objection
petition. Therefore, the part of the impugned order by which the
third amendment prayed in the amendment petition filed on
behalf of the petitioner has been rejected is not sustainable in
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the eyes of law. The learned trial court has wrongly observed
that the possession of the applicant has been admitted by the
opposite party no. 1/petitioners and the applicants are
exonerated from proving their possession. Learned counsel
further submits that the property in dispute is a public Trust and
the provisions of the Code would not strictly apply. The learned
counsel further submits that moreover, the amendment has been
sought in the written statement/objection filed by the
petitioner/opposite party no. 1 and it is the settled law that
Courts adopt far more liberal approach for amendment in
written statement than what is adopted for allowing the
amendment of plaint and referred to the decision of the Hon'ble
Supreme Court in the case of Sushil Kumar Jain Vs. Manoj
Kumar and Anr. reported in AIR 2009 SC 2544 especially
paragraph no. 12 and 13, wherein the Hon'ble Supreme Court
relying on an earlier decision in Panchdeo Narain Srivastava
Vs. Km. Jyoti Sahay and Anr. reported in 1983 SCC OnLine
SC 340, while considering the issue regarding admission made
by the defendant in the written statement held that admission
made by a party may be withdrawn or may be explained. On
these grounds the learned counsel submitted that the impugned
order is not sustainable and the same needs to be set aside.
Patna High Court C.Misc. No.817 of 2022 dt.-05-02-2025
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4. Learned counsel appearing on behalf of the
respondent no. 9 supported the contention of the learned counsel
for the petitioner submitting that the impugned order is not
sustainable. Learned counsel for the respondent no. 9 further
submitted that while rejecting the third amendment, the learned
trial court cited the reason that the moment the possession is
admitted it gives the right to the applicant and the applicant is
exonerated from Proving his possession as mandated by Section
58 of Indian Evidence Act, 1872 but considering the relief
sought for, the possession is irrelevant, the only prayer made in
the Miscellaneous Case No. 43 of 2017 is for setting aside the
notification of Constitution of Management Committee. Under
these circumstances, the question of possession does not arise
and also does not change the nature of the case. The learned trial
court failed to appreciate that the Board is duty bound to
constitute a committee for proper management of a public trust
since there has been no stay in the matter by any competent
court. Moreover, respondent no. 1 to 8 have already filed Title
Suit No. 470 of 2012 before the Court of learned Sub Judge,
Muzaffarpur for declaration of their Right and Title over the
property and also for setting aside the order dated 23.01.2012
passed by the Board declaring the property as public trust
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property and the injunction petition filed on behalf of the
Respondent Nos. 1 to 8 has been rejected. Possession is not
relevant in the matter before the learned trial court though it
may be a relevant consideration in the Title Suit No. 470 of
2012 filed by the respondents. Learned counsel further
submitted that moreover, the endeavor of the Court should be
towards determination of real controversy between the parties
and furtherance of justice. A more liberal approach is to be
adopted while considering the amendment in the written
statement and relied on a decision of the Co-ordinate Bench of
this Court passed in Hari Shankar Yadav & Ors. Vs. Dakhiya
Devi & Anr. reported in 2023 (2) BLJ 600. Thus, the learned
counsel also submitted that the impugned order needs
interference by this Court.
5. Learned counsel appearing on behalf of respondent
nos. 1-8 vehemently contended that there is no infirmity in the
impugned order and the same needs no interference. The learned
counsel submitted that admittedly the written statement was
filed on 15.03.2019 and after expiry of about two and a half
years amendment petition was filed by the petitioner on
15.11.2021
without explaining the delay and after closure of
evidence of the answering respondents. Therefore, the
Patna High Court C.Misc. No.817 of 2022 dt.-05-02-2025
amendment sought by the petitioner/opposite party no. 1 could
not be allowed in view of the proviso to Order VI Rule 17 of the
Code. Learned counsel further submitted that the amendment
sought by the petitioner is not formal in nature and by way of
proposed amendment the petitioner wants to withdraw his
admission made earlier as the petitioner admitted the possession
of the respondents and by this admission valuable right has
accrued in favour of the answering respondents and the same
cannot be allowed to be withdrawn. Moreover, the amendment
petition has been filed after closure of evidence of the answering
respondents and the same is clearly in the teeth of proviso to
Order VI Rule 17 of the Code. Learned trial court while
rejecting the amendment has rightly considered Section 58 of
the Indian Evidence Act and observing that admission once
made cannot be withdrawn by way of amendment, if such
amendment were to be allowed, the same would cause serious
prejudice to the answering respondents. Therefore, the third
amendment sought by the petitioner is not sustainable in the
eyes of law and the learned trial court has rightly rejected the
same.
6. Learned counsel referred to the Three Judge Bench
decision of the Hon'ble Supreme Court in the case of Nagindas
Patna High Court C.Misc. No.817 of 2022 dt.-05-02-2025
Ramdas Vs. Dalpatram Ichharam @ Brijram and Ors.
reported in AIR 1974 SC 471 wherein the Hon'ble Supreme
Court held that admissions in pleadings or judicial admission,
admissible under s. 58 of the Evidence Act, made by the parties
or their agents at or before the hearing of the case, stand on a
higher footing than evidentiary admissions. The former class of
admissions are fully binding on the party that makes them or
constitute a waiver of proof. The Hon'ble Supreme Court
further held that they by themselves can be made the foundation
of the rights of the parties. Thus, once the petitioner/opposite
party no. 1 admitted that heirs of deceased trustee had captured
the upper floor of the Trust building, this admission cannot be
allowed to be withdrawn.
7. The learned counsel next referred to the decision of
Hon'ble Supreme Court in the case of Modi Spinning &
Weaving Mills Co. Ltd. & Anr. Vs. Ladha Ram & Co. reported
in AIR 1977 SC 680 wherein the Hon'ble Supreme Court held
that though inconsistent pleas can be made in pleadings but if
the effect of substitution is not making inconsistent and
alternative pleadings but was seeking to displace the plaintiff
completely from the admissions made by the defendants in the
written statement such amendments could not be allowed. If
Patna High Court C.Misc. No.817 of 2022 dt.-05-02-2025
such amendments are allowed, the plaintiff would be
irretrievably prejudiced by being denied the opportunity of
extracting the admission from the defendants and thus held that
the High Court rightly rejected the application for amendment
and agreed with the trial court which said that "the repudiation
of the clear admission is motivated to deprive the plaintiff of the
valuable right accrued to him and it is against law."
8. Thereafter, learned counsel referred to the decision
of Ram Niranjan Kajaria Vs. Sheo Prakash Kagaria & Ors.
reported in 2015 (10) SCC 203 wherein the Three Judge Bench
of the Hon'ble Supreme Court overruled Panchdeo Narain
Srivastava (supra) holding that the proposition of law that even
an admission can be withdrawn as held in Panchdeo Narain
Srivastava (supra) does not reflect the correct legal position.
While agreeing with the position in Nagindas Ramdas (supra)
and in Gautam Sarup vs. Leela Jetly and Ors. reported in
(2008) 7 SCC 85 Hon'ble Supreme Court held that a categorical
admission made in the pleadings cannot be permitted to be
withdrawn by way of an admission. Thus, the learned counsel
submitted that the proposition of Sushil Kumar Jain (supra)
stands overruled by this decision of the Hon'ble Supreme Court.
9. Lastly, the learned counsel referred to the decision
Patna High Court C.Misc. No.817 of 2022 dt.-05-02-2025
of Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi & Ors.
reported in AIR 2006 SC 1647 wherein the Hon'ble Supreme
Court held that while considering whether an application should
or should not be allowed, the Court should not go into the
correctness or falsity of the case in the amendment. Likewise, it
should not record a finding on the merits of the amendment and
the merits of the amendment sought to be incorporated by way
of amendment are not to be adjudged at the stage of allowing
the prayer for amendment. Thus, the learned counsel submitted
that whatever be the merits of the proposed amendment, the
same cannot be the ground for its incorporation in the written
statement at this stage as while allowing or refusing the
amendment the Court is not supposed to look into the merits of
the proposed amendment. Thus, the learned counsel submitted
that the impugned order passed by the learned trial court is legal
and correct and needs to be affirmed.
10. I have given my thoughtful consideration to the
rival submissions of the parties and perused the record.
11. The relevant provision is Order VI Rule 17 of the
Code which reads as under:
"17. Amendment of pleadings.--The Court may
at any stage of the proceedings allow either
party to alter or amend his pleading in such
manner and on such terms as may be just, and
Patna High Court C.Misc. No.817 of 2022 dt.-05-02-2025
all such amendments shall be made as may be
necessary for the purpose of determining the
real questions in controversy between the
parties: Provided that no application for
amendment shall be allowed after the trial has
commenced, unless the Court comes to the
conclusion that in spite of due diligence, the
party could not have raised the matter before the
commencement of trial"
12. The issue before this Court lies under a very
narrow compass. The petitioner sought three amendments as
described hereinbefore and two such amendments were allowed
while the learned trial court rejected the third amendment. Third
amendment was sought in paragraph no. 20 of the written
objection which in its entirety reads as under:
"That thereafter after full and final enquiry
found that the heirs of deceased trustee are
interfering in the affairs of the trust property
and had captured of the upper floor of the trust
building and filed a complain before the
opposite party claiming the trust property as
their private property and after hearing the
parties this opposite party vide order dated
21.03.2012 declared the said property as public
trust property and subsequently vide order
dated 07.10.2016 settle a scheme under section
32 of Bihar State Religious Trust Act for smooth
and fair management of trust property against
which the present case has been filed."
(underlined for emphasis)
The bare perusal of paragraph no. 20 of the written
objection makes it clear that in its written objection, the heirs of
the deceased were found to be interfering in the affairs of the
trust property and it has also been mentioned that they had
Patna High Court C.Misc. No.817 of 2022 dt.-05-02-2025
captured the upper floor of the trust building. The petitioner now
wants to delete the portion wherein it has been mentioned that
"had captured of the upper floor of the trust building"
13. Clearly, the possession of the heirs of the deceased
trustee has been admitted by the petitioner in its written
objection. The learned trial court while rejecting the third
amendment has said that "The moment possession is admitted it
gives the right to the applicant and the applicant is exonerated
from proving his possession as mandated by section 58 of the
Indian Evidence Act 1872." The Hon'ble Supreme Court in the
case of Nagindas Ramdas (supra) has held as follows:
"From a conspectus of the cases cited at the bar,
the principle that emerges is, that if at the time
of the passing of the decree, there was some
material before the Court, on the basis of which,
the Court could be prima facie satisfied, about
the existence of a statutory ground for eviction,
it will be presumed that the Court was so
satisfied and the decree for eviction, though
apparently passed on the basis of a compromise,
would be valid. Such material may take the
shape either of evidence recorded or produced
in the case, or, it may partly or wholly be in the
shape of an express or implied admission made
in the compromise agreement, itself, Admissions,
if true and clear, are by far the best proof of the
facts admitted. Admissions in pleadings or
judicial admissions, admissible under s. 58 of
the Evidence Act, made by the parties or their
agents at or before the hearing of the case, stand
on a higher footing than evidentiary admissions.
The former class of admissions are fully binding
on the party that makes them and constitute a
Patna High Court C.Misc. No.817 of 2022 dt.-05-02-2025
waiver of proof. They by themselves can be
made the. foundation of the rights of the parties
On the other hand evidentiary admissions which
are receivable at the trial as evidence, are by
themselves, not conclusive. They can be shown
to be wrong."
Morever, in the case of Modi Spinning & Weaving
Mills Co. Ltd. & Anr. (supra) the Hon'ble Supreme Court
frowned upon such amendment which sought to displace the
plaintiff completely from the admission made by the defendant
in the written statement.
14. In the light of the admitted facts and
circumstances, there could be no doubt about the petitioner
trying to resile from admission made in their written statement
and in view of the settled law, such amendment could not be
allowed. Recently, in the case of Life Insurance Corporation
Of India vs Sanjeev Builders Private Limited & Anr. reported
in 2022 SCC OnLine SC 1128, while summarizing the law on
the point of amendment, Hon'ble Supreme Court held that all
amendments could be allowed unless by the amendment, the
parties seeking amendment seek to withdraw any clear
admission made by the party which confers a right on the other
side.
15. The challenge to the amendment has also be on
the ground that the amendments were sought after
Patna High Court C.Misc. No.817 of 2022 dt.-05-02-2025
commencement of trial but the learned trial court allowed the
other amendments after the evidence of the applicant was over
and therefore, the amendments were allowed after
commencement of trial and allowing the amendments at the
later stage has not been challenged by the other side and thus the
order to that extent attained finality. But notwithstanding the
order allowing other amendments, the fact remains the third
amendment is hit by the proviso to Order VI Rule 17 of the
Code and no due diligence has been shown for not bringing the
amendment prior to commencement of trial.
16. In the light of the discussion made hereinabove, I
am of the considered opinion that the learned trial court
proceeded in the matter considering the settled proposition of
law and rightly applied the same to the facts before it and hence,
there is no infirmity in the impugned order dated 28.06.2022
and the same is affirmed.
17. Accordingly, the present petition stands dismissed.
(Arun Kumar Jha, J)
Anuradha/-
AFR/NAFR AFR
CAV DATE 07.01.2025
Uploading Date 06.02.2025
Transmission Date N/A
