Patna High Court
Sachchida Nand Singh vs Vashishtha Narayan Singh on 17 February, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.718 of 2017
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1. Sachchida Nand Singh son of Late Ram Pyar Singh, resident of Village-
Bahadurpur, P.O. Kawalpura, P.S. Masrakh, District-Saran.
2. Gupteshwar Singh,
3. Sanjeev Singh, All Sons of Late Ram Pyar Singh,
4. Mosmat Kanti Kuer, Wife of Late Ram Pyar Singh, All residents of village -
Bahadurpur, P.O. Kawalpura, P.S. Masrakh, District - Saran
... ... Petitioner/s
Versus
1. Vashishtha Narayan Singh Son of Late Ram Ekbal Singh, resident of
Village-Bahadurpur, P.O. Kawalpura, P.S. Masrakh, District-Saran.
2.1. Mosmat Motijhari Devi W/o Late Prabhu Nath Singh, resident of Village-
Bahadurpur, P.O. Kawalpura, P.S. Mashrakh, District-Saran.
2.2. Anil Singh, S/o Late Prabhu Nath Singh, resident of Village-Bahadurpur,
P.O. Kawalpura, P.S. Mashrakh, District-Saran.
2.3. Anuj Kumar Singh, S/o Late Prabhu Nath Singh, resident of Village-
Bahadurpur, P.O. Kawalpura, P.S. Mashrakh, District-Saran.
2.4. Pramila Kuer, W/o Baban Singh and D/o Late Prabhu Nath Singh, resident
of Village-Bahadurpur, P.O. Kawalpura, P.S. Mashrakh, District-Saran.
3. Sunil Kumar Singh,
4. Santosh Kumar Singh, Sons of Late Ram Subhag Singh,
6. Sunita Devi,
7. Sulekha Devi,
8. Sangeeta Devi,
9. Savita Devi, Daughters of Late Ram Subhag Singh,
10. Dharmendra Kumar S/o Late Ram Naresh Singh, resident of Village-
1. Bahadurpur, P.O. Kawalpura, P.S. Mashrakh, District-Saran.
10. Sandip Kumar, S/o Late Ram Naresh Singh, resident of Village-Bahadurpur,
2. P.O. Kawalpura, P.S. Mashrakh, District-Saran.
10. Rina Devi D/o Late Ram Naresh Singh, resident of Village-Bahadurpur, P.O.
3. Kawalpura, P.S. Mashrakh, District-Saran.
10. Babita Devi, D/o Late Ram Naresh Singh, resident of Village-Bahadurpur,
4. P.O. Kawalpura, P.S. Mashrakh, District-Saran.
10. Rahul Kumar, S/o Late Narendra Kumar, resident of Village-Bahadurpur,
5. P.O. Kawalpura, P.S. Mashrakh, District-Saran.
10. Khusbu Devi, D/o Late Narendra Kumar, resident of Village-Bahadurpur,
6. P.O. Kawalpura, P.S. Mashrakh, District-Saran.
10. Rani Devi, D/o Late Narendra Kumar, resident of Village-Bahadurpur, P.O.
7. Kawalpura, P.S. Mashrakh, District-Saran.
10. Rubi Devi, W/o Late Shailendra Kumar, resident of Village-Bahadurpur,
8. P.O. Kawalpura, P.S. Mashrakh, District-Saran.
Patna High Court C.Misc. No.718 of 2017 dt.17-02-2025
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10. Yash Kumar (Minor), S/o Late Shailendra Kumar, resident of Village-
9. Bahadurpur, P.O. Kawalpura, P.S. Mashrakh, District-Saran.
11. Rabindra Singh,
12. Birendra Singh, Sons of Late Ramji Singh,
13. Asha Singh Widow of Late Uday Pratap Singh, resident of Village-
1. Bahadurpur, P.O. Kawalpura, P.S. Mashrakh, District-Saran.
13. Udayan Pratap Singh, son of Late Uday Pratap Singh, resident of Village-
2. Bahadurpur, P.O. Kawalpura, P.S. Mashrakh, District-Saran.
14. Sanjay Singh, Both Sons of Late Ram Lochan Singh,
15. Om Prakash Singh, Son of Late Mahendra Singh, All residents of village -
Bahadurpur, P.O. Kawalpura, P.S. Masrakh, District - Saran
16. Subhanti Devi,
17. Devanti Devi,
18. Tunna Devi,
19. Jhunna Devi,
20. Munna Devi,
21. Madhu Devi, Daughters of Late Narendra Kumar Singh,
22. Navin Kumar Singh,
23. Pravin Kumar Singh, Sons of Late Shatrughana Singh, Sl. No. 16 to 23 all
Residents of village - Bahadurpur, P.O. Kawalpura, P.S. Masrakh, District -
Saran
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Navin Nikunj, Adv.
Mr. Koshalendra Rai, Adv.
For the Respondent/s : Mr. Satish Chandra Mishra, Adv.
Md. Nurul Hoda, Adv.
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 17-02-2025
Heard learned counsel for both the parties and I intend
to dispose of the petition at the stage of admission itself.
2. The petitioners are aggrieved by the order dated
24.01.2017
passed by learned Sub Judge-II, Chapra in Partition
Suit No. 236 of 2014 whereby and whereunder the petition filed
on behalf of the plaintiffs dated 29.03.2016 for making formal
Patna High Court C.Misc. No.718 of 2017 dt.17-02-2025
amendments in the plaint has been rejected.
3. Learned counsel for the petitioner submits that the
impugned order is not sustainable as the same has been passed
without consideration of the facts and law. The learned trial court
went into the merits of the amendment while refusing the
application for amendment and the same is not permissible.
Learned counsel further submits that the impugned order has
mentioned that facts once admitted cannot be withdrawn but
there is no such withdrawal of the admission. Learned counsel
further submits that the amendments were sought prior to the
commencement of trial and this fact was also not appreciated by
the learned trial court. Learned counsel further submits that the
amendments are quite formal in nature as the petitioner has
sought for insertion of certain plots in the Schedule of suit
property and at the same time seeking deletion of certain plots
from the same Schedule. Further, amendment has been sought
about correction of typographical error in one of the Khesra Nos.
1478 to 478. Another amendment is about deletion of repetition
of Khata No. 93 Khesra No. 1329 Rakwa 8 Katha 1 Dhur
mentioned at two places and deletion from one such place.
4. Learned counsel appearing on behalf of the
respondents vehemently contends that there is no infirmity in the
impugned order and the same does not need interference.
Patna High Court C.Misc. No.718 of 2017 dt.17-02-2025
Learned counsel submits that the petitioners who are plaintiff
before the learned trial court have been trying to insert in the suit
certain plots which have already been partitioned way back in
1964 in favour of the ancestors of the defendants/respondents
and they have their pucca houses on the said part of land and no
useful purpose would be served in bringing these plots in the
Schedule of the plaint as ultimately the case of the plaintiffs on
this account would fail. By not incorporating the said plot in the
Schedule at the time of filing of the plaint, the plaintiffs tacitly
acknowledged the earlier partition and the right and title of the
defendants over the said plot of land. Thus, learned counsel
submits that the present petition is devoid of merits and the same
be dismissed.
5. I have given my thoughtful consideration to the rival
submission of the parties.
6. Admittedly, the amendment have been sought prior
to the commencement of trial. From the perusal of the petition
filed for amendment, I find that the plaintiffs want to insert two
plots in the Schedule of the suit property while deleting two plots
from the Schedule. At the same time, third amendment is with
regard to correction in Khesra No. 1478 to 478 and the fourth
amendment is about repetition of Khata No. 93 Khesra No. 1329
Rakwa 8 Katha 1 Dhur at two places and deletion from one such
Patna High Court C.Misc. No.718 of 2017 dt.17-02-2025
place. The challenge to the amendment is mainly on the ground
that the property sought to be introduced in Schedule is the
property of the defendants which they got through an earlier
partition but it is the settled law that merits of the amendment
could not be seen at the time of consideration of amendment
petition.
Hon'ble Supreme Court in the case of Sampath
Kumar Vs. Ayyakannu and Anr. reported in (2002)7 SCC 559
has held that the merits of averments sought to be incorporated
by way of amendment are not to be judged at the stage of
allowing prayer for amendment.
On the same lines, in the case of Rajesh Kumar
Aggarwal and others vs. K.K. Modi & Ors. reported in AIR
2006 SC 1647, the Hon'ble Supreme Court held as follows:
"While considering whether an application for
amendment should or should not be allowed, the Court should
not go into the correctness of 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."
7. Further perusal of the record shows the amendments
Patna High Court C.Misc. No.718 of 2017 dt.17-02-2025
are quite formal in nature and should not cause any prejudice to
the other side. I do not find withdrawal of any admission.
Moreover, trial is at the preliminary state and is yet to commence
and endeavour of the Court should be towards determination of
real controversy between the parties. Therefore, in my considered
opinion, the learned trial court committed an error of jurisdiction
while rejecting the amendment application of the petitioner.
8. Therefore, the impugned order dated 24.01.2017 is
set aside and the application dated 29.03.2016 filed by the
petitioners seeking amendment is allowed. Accordingly, the
present petition stands allowed.
9. However, the learned trial court is directed to give
ample opportunity to the defendants to file additional/amended
written statement to rebut/controvert the contention of the
plaintiffs/petitioners.
(Arun Kumar Jha, J)
Anuradha/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 19.02.2025
Transmission Date N/A
