Patna High Court
Kamleshwar Thakur vs Angad Thakur on 28 February, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.905 of 2017
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1. Kamleshwar Thakur, Son of Late Lallan Thakur Resident of Village and
P.O.- Gangauli, P.S.- Simri, District- Buxar.
2. Mangaleshwar Thakur, Son of Late Lallan Thakur, Resident of Village and
P.O.- Gangauli, P.S.- Simri, District- Buxar.
... ... Petitioner/s
Versus
1. Angad Thakur Son of Late Shambhu Thakur Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
2. Binod Kumar, Son of Late Shambhu Thakur Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
3. Kanhaiya Thakur, Son of Late Kumari Thakur @ Sidhnath Thakur Resident
of Village and P.O.- Gangauli, P.S.- Simri, District- Buxar.
4. Takeshwar Thakur, Son of Late Kumari Thakur @ Sidhnath Thakur Resident
of Village and P.O.- Gangauli, P.S.- Simri, District- Buxar.
5.1. Vidyawati Devi W/o Late Dayanand Thakur Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
5.2. Manas Thakur S/o Late Dayanand Thakur Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
5.3. Mukul Thakur S/o Late Dayanand Thakur Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
5.4. Ramashankar Thakur S/o Late Rajbansh Thakur Resident of Village and
P.O.- Gangauli, P.S.- Simri, District- Buxar.
5.5. Lal Thakur S/o late Rajbansh Thakur Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
5.6. Shridhar Thakur @ Hiran Thakur S/o Late Rajbansh Thakur Resident of
Village and P.O.- Gangauli, P.S.- Simri, District- Buxar.
5.7. Bachul Thakur S/o Late Rajbansh Thakur Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
5.8. Shivshankar Thakur S/o Late Rajbansh Thakur Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
6. Umesh Thakur, Son of Maksdan Thakur Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
7. Ganesh Thakur, Son of Maksdan Thakur Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
8. Most. Dhanrajo Devi, Widow of Late Mahesh Thakur, Resident of Village
and P.O.- Gangauli, P.S.- Simri, District- Buxar.
9. Rahul Thakur, Son of Late Mahesh Thakur Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
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10. Anish Thakur, Son of Late Mahesh Thakur Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
11. Manish Thakur, Son of Late Mahesh Thakur Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
12. Name not known, Widow of Maksudan Thakur, Resident of Village and
P.O.- Gangauli, P.S.- Simri, District- Buxar.
13. Shiv Shankar Rai, Son of Late Vishundayal Rai Resident of Village and
P.O.- Rajapur, P.S.- Simri, District- Buxar.
14. Sheo Muni Rai, Son of Late Vishundayal Rai Resident of Village and P.O.-
Rajapur, P.S.- Simri, District- Buxar.
15. Ashutosh Rai S/o Late Chandrama Rai R/o- Vill. and P.O.- Rajapur, P.S.-
1. Simri, Dist.- Buxar.
15. Dabloo Rai S/o Late Chandrama Rai R/o- Vill. and P.O.- Rajapur, P.S.-
2. Simri, Dist.- Buxar.
16. Anilji Rai, Son of Late Surajdeo Rai Resident of Village and P.O.- Rajapur,
P.S.- Simri, District- Buxar.
17. Bablu Rai, Son of Late Surajdeo Rai Resident of Village and P.O.- Rajapur,
P.S.- Simri, District- Buxar.
18. Abhimanyu Rai, Son of Late Surajdeo Rai Resident of Village and P.O.-
Rajapur, P.S.- Simri, District- Buxar.
19. Kiran Devi, Late Ramnath Rai Resident of Village and P.O.- Rajapur, P.S.-
Simri, District- Buxar.
20. Sabitri Devi, Late Ramnath Rai Resident of Village and P.O.- Rajapur, P.S.-
Simri, District- Buxar.
21. Usha Devi, Late Ramnath Rai Resident of Village and P.O.- Rajapur, P.S.-
Simri, District- Buxar.
22. Om Prakash Rai, Son of Late Sidhnath Rai Resident of Village and P.O.-
Rajapur, P.S.- Simri, District- Buxar.
23. Vijay Prakash Rai, Son of Late Sidhnath Rai Resident of Village and P.O.-
Rajapur, P.S.- Simri, District- Buxar.
24. Rajnath Rai, S/o Late Muni Nath Rai Resident of Village and P.O.- Rajapur,
P.S.- Simri, District- Buxar.
25. Jitendra Rai, Son of Late Tej Narain Rai Resident of Village and P.O.-
Rajapur, P.S.- Simri, District- Buxar.
26. Amesh Rai, Son of Late Tej Narain Rai Resident of Village and P.O.-
Rajapur, P.S.- Simri, District- Buxar.
27. Akhilesh Rai, Son of Late Tej Narain Rai, Resident of Village and P.O.-
Rajapur, P.S.- Simri, District- Buxar.
28. Suresh Rai S/o Late Aap Narain Rai R/o- Vill. and P.O.- Rajapur, P.S.- Simri,
1. Dist.- Buxar.
28. Kamlesh Rai S/o Late Aap Narain Rai R/o- Vill. and P.O.- Rajapur, P.S.-
2. Simri, Dist.- Buxar.
29. Raghubans Rai, Son of Late Srikant Rai Resident of Village and P.O.-
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
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Rajapur, P.S.- Simri, District- Buxar.
30. Upendra Rai, Son of Late Srikant Rai, Resident of Village and P.O.- Rajapur,
P.S.- Simri, District- Buxar.
31. Ramakant Rai, S/o Gangadhari Rai, Resident of Village and P.O.- Rajapur,
P.S.- Simri, District- Buxar.
32. Nagendra Rai S/o Late Deoraj Rai R/o- Vill. and P.O.- Rajapur, P.S.- Simri,
1. Dist.- Buxar.
32. Surendra Rai S/o late Deoraj Rai R/o- Vill. and P.O.- Rajapur, P.S.- Simri,
2. Dist.- Buxar.
33. Gupteshwar Rai, S/o Shivjatan Rai, Resident of Village and P.O.- Rajapur,
P.S.- Simri, District- Buxar.
34. Umesh Rai, Son of Late Namo Narain Rai Resident of Village and P.O.-
Rajapur, P.S.- Simri, District- Buxar.
35. Dinesh Rai, Son of Late Namo Narain Rai Resident of Village and P.O.-
Rajapur, P.S.- Simri, District- Buxar.
36. Sanjay Rai, Son of Late Namo Narain Rai Resident of Village and P.O.-
Rajapur, P.S.- Simri, District- Buxar.
37. Satyendra Rai, Son of Late Namo Narain Rai Resident of Village and P.O.-
Rajapur, P.S.- Simri, District- Buxar.
38. Rajdeo Rai, Son of Late Namo Narain Rai Resident of Village and P.O.-
Rajapur, P.S.- Simri, District- Buxar.
39. Jitendra Rai, Son of Late Namo Narain Rai Resident of Village and P.O.-
Rajapur, P.S.- Simri, District- Buxar.
40. Laxman Rai, S/o Ramsinghasan Rai, Resident of Village and P.O.- Rajapur,
P.S.- Simri, District- Buxar.
41. Baban Yadav, S/o Late Hardeo Yadav, Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
42. Chhatoo Yadav, S/o Late Shivsagar Yadav, Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
43. Indradeo Yadav, Husband of Late Dulhin Tetari Devi, Resident of Village
and P.O.- Gangauli, P.S.- Simri, District- Buxar.
44. Dharmendra Yadav, Son of Late Shyam Bihari Yadav Resident of Village
and P.O.- Gangauli, P.S.- Simri, District- Buxar.
45. Munna Yadav, Son of Late Shyam Bihari Yadav Resident of Village and
P.O.- Gangauli, P.S.- Simri, District- Buxar.
46. Shravan Yadav, Son of Late Shyam Bihari Yadav Resident of Village and
P.O.- Gangauli, P.S.- Simri, District- Buxar.
47. Suraj Yadav, Son of Late Shyam Bihari Yadav Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
48. Most. Lalita Devi W/o Late Surendra Thakur R/o- Vill. and P.O.- Gangauli,
1. P.S.- Simri, Dist.- Buxar.
48. Chhotu Thakur S/o- Late Surendra Thakur R/o- Vill. and P.O.- Gangauli,
2. P.S.- Simri, Dist.- Buxar.
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
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48. Jhunna Thakur S/o Late Surendra Thakur R/o- Vill. and P.O.- Gangauli, P.S.-
3. Simri, Dist.- Buxar.
49. Birendra Thakur, Son of Late Rewati Raman Thakur Resident of Village and
P.O.- Gangauli, P.S.- Simri, District- Buxar.
50. Mira Devi W/o Late Triloki Thakur R/o- Vill. and P.O.- Gangauli, P.S.-
1. Simri, Dist.- Buxar.
50. Rajeev Thakur S/o Late Triloki Thakur R/o- Vill. and P.O.- Gangauli, P.S.-
2. Simri, Dist.- Buxar.
50. Ranjan Thakur S/o Late Triloki Thakur R/o- Vill. and P.O.- Gangauli, P.S.-
3. Simri, Dist.- Buxar.
51. Shubh Narayan Thakur, Son of Late Awadhesh Thakur Resident of Village
and P.O.- Gangauli, P.S.- Simri, District- Buxar.
52. Ram Pratap Thakur, Son of Late Awadhesh Thakur Resident of Village and
P.O.- Gangauli, P.S.- Simri, District- Buxar.
53. Dinesh Thakur, Son of Late Harihar Thakur Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
54. Ganesh Thakur, Son of Late Harihar Thakur Resident of Village and P.O.-
Gangauli, P.S.- Simri, District- Buxar.
55. Gajendra Thakur S/o Late Chhiteshwar Thakur R/o- Vill. and P.O.-
1. Gangauli, P.S.- Simri, Dist.- Buxar.
55. Mrigendra Thakur S/o Late Chhiteshwar Thakur R/o- Vill. and P.O.-
2. Gangauli, P.S.- Simri, Dist.- Buxar.
55. Uma Devi D/o Late Chhiteshwar Thakur R/o- Vill. and P.O.- Gangauli, P.S.-
3. Simri, Dist.- Buxar.
55. Nilu Devi D/o Late Chhiteshwar Thakur R/o- Vill. and P.O.- Gangauli, P.S.-
4. Simri, Dist.- Buxar.
56. Shiva Sahay Thakur, S/o Late Gupteshwar Thakur Resident of Village and
P.O.- Gangauli, P.S.- Simri, District- Buxar.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Binod Kumar Singh, Advocate
For Respondent 5 : Mr. Gopal Govind Mishra, Advocate
For Respondent 7 : Dr. Kamal Deo Sharma, Advocate
For the Respondents 1 to 4 & 6 : Mr. Rajiv Ranjan Kr. Pandey, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 28-02-2025
The instant petition has been filed for quashing the
order dated 09.03.2017 passed in Title Suit No. 123/2004 by the
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
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learned Sub Judge-II, Dumraon, Buxar whereby and
whereunder the application dated 05.08.2015 filed on behalf of
the plaintiffs/petitioners under Order VI Rule 17 read with
Section 151 of the Code of Civil Procedure (hereinafter referred
to as 'the Code') seeking amendment in their plaint, has been
rejected.
2. From the records, it transpires that the petitioners
along with respondents 5th set instituted Title Suit No. 123/2004
in the court of learned Sub Judge-1, Buxar against the
defendants/other respondents praying for grant of decree for
partition in their favour and after partition by metes and bounds,
carving out a separate Takhta of 3/5th share in their share. The
plaintiffs also sought relief that the revisional survey entry in
respect of Schedule II be declared as wrong and sham and the
same be held to be in the name of plaintiffs with 3/5th share,
defendant 1st set having 1/5th share and defendant 2nd set having
1/5th share in 88 bighas of land described in Schedule II of the
plaint. The plaintiffs claim that suit land of Schedule I was taken
on settlement under Old Khata Nos. 11, 16, 9, 19, 20 and 42 by
Shiv Jatan Rai, Ram Ratan Rai, Gangadhari Rai, Ram Karan
Rai, Jhingur Rai and Ram Ekbal Rai through registered Patta
executed by Maharaja Kesho Prasad Singh of Dumraon Raj
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
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dated 18.11.1931 for the period of 1339 fasli to 1346 fasli and
subsequently, Maharaja Bahadur filed Title Suit No. 32/1939,
which was compromised and Maharaja Bahadur confirmed the
permanent raiyati of pattedars. One Ram Bihari Thakur also
became satedar with the aforesaid six pattedars. Satedar Ram
Bihari Thakur by amicable settlement got 88 bighas of land of
Schedule-II and remaining land continued in possession of
pattedar. The plaintiffs claim to have joint Satedari right with
Ram Bihari Thakur. Accordingly, the plaintiffs claim 3/5th share
out of 88 bighas of land. They further claim as the names of
plaintiffs and defendants 2nd set have not been mentioned in the
revisional survey khatiyan, the same requires correction
according to the share of the plaintiffs and the aforesaid
defendants. Thus, the suit has been instituted seeking partition
as the defendants refused to partition the said property and
correct the survey entry in Schedule II land.
It further transpires that plaintiff no. 9 filed an
amendment application under Order VI Rule 17 read with
Section 151 of the Code seeking addition of land in Schedule II
of the plaint stating therein that due to lack of knowledge and
non-availability of documents, some of the joint family
properties have been left and the said land be added for
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
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complete partition and complete adjudication of dispute. The
defendant 1st party and defendant nos. 4 to 6 filed their
rejoinder on 10.09.2015 to the amendment petition dated
05.08.2015
seeking rejection of the amendment petition on the
ground of delay and also on the ground that only one plaintiff
has filed amendment petition. The said application for
amendment was rejected vide order dated 09.03.2017 by the
learned trial court which is under challenge before this Court.
3. The learned counsel for the petitioners submitted
that the learned trial court misdirected itself in taking into
consideration the stage of suit and the fact that issues were
framed in 2008. But the learned trial court ought to have
considered that for just and proper decision in the case, the
amendment was necessary. The plaintiffs were not having any
knowledge of the properties proposed to be added as joint
family properties recorded in the name of the ancestors of the
parties, namely Mithoo Thakur in old khatiyan. The material
fact showing the nature of property to be joint family property
has not been denied in the rejoinder of the defendants and, thus,
it would be deemed that the facts stated in the amendment
application have been admitted by the defendants. Even the
amendment petition has been filed not only by the plaintiff no. 9
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
alone but by other plaintiffs as well. But the learned trial court
wrongly disbelieved the statements made in the rejoinder about
the amendment application being filed only by plaintiff no. 9.
The observations in this regard is error on record. The learned
counsel further submitted that when the properties admittedly
belong to the ancestor of the parties, there remains no doubt that
such property is joint family property of descendants of such
person. The learned counsel further submitted that if the
impugned order is allowed to stand, it would result in
irreparable loss and injury to the plaintiffs as the present suit is
filed for partition and admittedly the lands sought to be
incorporated are joint family properties. The amendments are
not in the nature that it would change the nature of the suit or
would result in retrial. The amendment is only for insertion of
certain lands for partition. If the amendment is not allowed, it
will result in multiplicity of proceedings between the parties.
The learned counsel further submitted that the impugned order
is fit to be set aside as the amendment sought for is nothing but
it only relates to including some more properties in the suit and
it would not change the nature of suit and it would remain the
suit for partition nor the amendment would cause prejudice to
the rights of the parties. The learned counsel referred to the
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
decision of the Hon'ble Supreme Court in the case of Usha
Devi vs. Rijwan Ahamd and Ors. reported in (2008) 3 SCC 717
wherein the Hon'ble Supreme Court allowed the amendment
petition filed after framing of issues while imposing cost of
Rs.10,000/- on the plaintiff. The learned counsel further referred
to the decision of the Hon'ble Supreme Court in the case of
Varun Pahwa vs. Renu Chaudhary reported in (2019) 15 SCC
628 wherein the Hon'ble Supreme Court held that inadvertent
mistake cannot be refused to be corrected when the mistake is
apparent from the reading of the plaint. The Hon'ble Supreme
Court further held that the rules of procedure are handmaid of
justice and cannot defeat the substantive rights of the parties.
The learned counsel also submitted that the learned trial court
illegally and improperly exercised jurisdiction vested in it and
passed the impugned order. Thus, learned counsel submitted that
the impugned order could not be sustained and the same needs
to be set aside.
4. On the other hand, learned counsel appearing on
behalf of the respondent nos. 5 (i) to 5 (viii) vehemently
contended that there is no infirmity in the impugned order and
the same needs no interference. The learned counsel further
submitted that in the partition suit, issues have been framed in
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
the year 2008 and, thereafter, evidence on behalf of the plaintiffs
and defendants was closed. The title suit has been fixed for
argument on 30.03.2009 and the learned counsel for the
plaintiffs/petitioners even advanced arguments in part. The
learned counsel further submitted that the property which the
plaintiff wants to add in Schedule II for seeking partition was
already received after khangi partition by one Chandrika Thakur
and the ancestors of legal heirs of respondent no. 5 and others.
The learned counsel further submitted that the
plaintiffs/petitioners have not brought the entire suit property by
way of amendment which had already partitioned and the
survey khatiyan was prepared in the name of co-sharers and in
possession column their names are clearly mentioned by the
survey authority during the course of survey operation. On the
basis of revisional survey khatiyan, the mother of the petitioners
sold her share by registered deed no. 10923 dated 28.09.2005 in
the name of Manish Kumar Thakur by mentioning the fact that
she obtained share by way of khangi partition in joint Hindu
family property. The learned counsel further submitted that
moreover, the amendment is clearly barred by the proviso to
Rule VI Order 17 of the Code, which provides that no
application for amendment shall be allowed after the trial has
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
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. If the delay in bringing the
amendment has not been explained and due diligence has not
been shown, the proviso to Order VI Rule 17 of the Code
prohibits the amendment of pleading after commencement of
trial, as such, the impugned order cannot be faulted. In the
present case, the petitioners have not shown due diligence and
the petition for amendment was filed by the plaintiff during the
course of argument which is not permissible in the eyes of law.
The learned counsel relied on the decision of this Court in the
case of Brij Mohan Upadhyay vs. The State of Bihar and Ors.
reported in (2013) 3 PLJR 354 wherein the learned Single
Judge relying upon the proviso to Order 6 Rule 17 of the Code
upheld the decision of the learned trial court holding that the
learned trial court has rightly not entertained the amendment
petition on the ground of delay as proviso to Order 6 Rule 17
prohibits the amendment of pleading after commencement of
trial unless due diligence is shown. In the instant case, the
plaintiffs failed to show any such due diligence. Thus, learned
counsel submitted that if the learned trial court rejected the
application for amendment, there is no illegality in the order.
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
The learned counsel reiterated that the amendment petition has
been filed by the plaintiffs with oblique motive and malafide
intention to grab the allotted shares of respondents and others.
Therefore, rejection of such amendment application does not
need any interference by this Court and the impugned order
needs to be affirmed.
5. I have given my thoughtful consideration to the
rival submission of the parties and perused the records.
6. The issue before this Court is whether amendment
petition could have been allowed after the trial has commenced
and evidence of both sides have been closed.
7. Order VI Rule 17 of the Code provides for
amendment in pleading and it reads as under:-
"17. Amendment of pleadings.-The Court may
at any stage of the proceedings allow either
party to alter or amend his pleadings in such
manner and on such terms as may be just, and
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
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
party could not have raised the matter before
the commencement of trial."
8. Though the amendment could be allowed at any
time prior to commencement of the trial in order to determine
the real controversy between the parties, if the amendments are
sought after commencement of trial, then the person applying
for amendment has to show that despite due diligence he could
not have moved the application for amendment prior to
commencement of trial. The courts have been liberal in allowing
the amendment but there are certain exceptions. A time barred
claim cannot be allowed by way of amendment. Similarly, mala
fide amendments are not to be allowed.
9. The Hon'ble Supreme Court in the case of
Basavaraj vs. Indira & Ors. reported in (2024) 3 SCC 705, has
held that the Court should not allow the amendments at belated
stages if due diligence has not been shown. In the case of
Basavaraj (supra), the Hon'ble Supreme Court quoted the case
of M. Revanna vs. Anjanamma reported in (2019) 4 SCC 332
and held that Order VI Rule 17 of the Code prevents an
application for amendment after the trial has commenced unless
the Court comes to the conclusion that despite due diligence the
party could not have raised the issue. The Hon'ble Supreme
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
Court further held that the burden is on the party seeking
amendment after commencement of trial to show that in spite of
due diligence, such amendment could not be sought earlier. The
Hon'ble Supreme Court refused to allow the amendment as it
was found that plaintiffs came to know about the factum sought
to be incorporated as amendment in the year of filing of their
suit and there was no explanation by them as to why they did
not file the application for amendment for 15 years.
10. Further, the Hon'ble Supreme Court in the case of
Vijay Hathising Shah and another vs. Gitaben Parshottamdas
Mukhi and Others reported in (2019) 5 SCC 360 has held in
paragraph 9 as under :
"9. In our view, the trial court was
right in rejecting the application. This we say for
more than one reason. First, it was wholly
belated; second, Respondent 1-plaintiff filed the
application for amendment of the plaint when the
trial in the suit was almost over and the case was
fixed for final arguments; and third, the suit could
still be decided even without there being any
necessity to seek any amendment in the plaint. In
our view, amendment in the plaint was not really
required for determination of the issues in the
suit".
11. In the present case, the plaintiff no. 9, namely
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
Kamleshwar Thakur sought addition of a number of plots along
with their details in Schedule II of the plaint. In his petition
seeking amendment, the plaintiff has stated that due to lack of
knowledge and lack of documents, certain property was left to
be mentioned in Schedule of the plaint and the same was
necessary for the purpose of complete adjudication of the
dispute. But the plaintiff has not stated anywhere that when he
came to know about these properties sought to be added through
amendment. Therefore, the story of the plaintiffs about
subsequent knowledge does not appear to be believable. This
fact assumes importance since the amendment has been sought
after closure of evidence of the parties as it appears from the
impugned order. Thus, it is evident that the amendment has been
sought after commencement of trial but the plaintiffs/petitioners
have failed to show that in spite of due diligence, they could not
have raised the matter before commencement of trial. Merely
making averment that due to lack of knowledge about the
documents and due to non-availability of documents, the
plaintiffs could have mentioned certain lands as the suit property
would not suffice for the purpose of the amendment.
12. Furthermore, the plaintiffs/petitioners have failed
to show that despite due diligence they could not have raised the
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
matter prior to commencement of trial. Such amendment would
be barred by proviso to Order VI Rule 17 of the Code. The
learned trial court also considered the submission made on
behalf of the plaintiffs and found it unconvincing that the
plaintiffs were ignorant about the fact with regard to details of
joint family property. Similarly, the learned trial court did not
find any cogent reasons for condoning ordinate delay in moving
the amendment petition. The plaintiffs/petitioners utterly failed
to show that why they could not have raised the matter
previously though it has always been mentioned that the
khatiyan existed in the name of Mithoo Thakur. The learned trial
court has also noted the fact that the plaintiffs/petitioners did not
seek the amendment at appropriate time, rather he brought the
amendment after completion of evidences of both the sides and
almost at the final stage of the suit, that too without any valid
and cogent reasons. Hence, in my opinion, such amendment will
be hit by proviso to Order VI Rule 17 of the Code as the
amendments have been sought at highly belated stage and could
not be allowed. Reliance could be placed in this regard on the
decisions of the Hon'ble Supreme Court in the cases of
Basavaraj (supra) and Vijay Hathising Shah (supra).
13. In the light of discussion made hereinabove as
Patna High Court C.Misc. No.905 of 2017 dt.28-02-2025
well as law laid down by the Hon'ble Supreme Court, I do not
find any infirmity in the impugned order as the amendment was
clearly barred by proviso to Order VI Rule 17 of the Code and
no due diligence has been shown in seeking the amendment
prior to commencement of trial. Hence, the impugned order
dated 09.03.2017 is affirmed.
14. Finding no merit in the present petition, the
same stands dismissed.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR AFR
CAV DATE 21.01.2025
Uploading Date 28.02.2025
Transmission Date NA
