Patna High Court
Upendra Manjhi And Anr vs Prakash Manjhi And Ors on 28 February, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1702 of 2017
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1. Upendra Manjhi
2. Yogendra Manjhi Both sons of late Shivpujan Manjhi resident of
Ramchandrapur, P.S. - Thawe, District - Gopalganj.
... ... Petitioner/s
Versus
1. Prakash Manjhi
2. Parshuram Manjhi both sons of late Sudarshan Manjhi Resident of village -
Ramchandrapur, P.S. - Thawe, District - Gopalganj.
3. Manju Devi W/o Krishna Ram resident of Thawe Videshi Tola, P.S. - Thawe,
District - Gopalganj.
4. Neelam Devi W/o Dhrup Manjhi, D/o Sudarshan Manjhi Resident of
Bargachia, P.S. - Thawe, District - Gopalganj.
5. Devendra Singh S/o Late Kuber Singh
6. Vimla Devi W/o Arun Singh
7. Sunaina Devi W/o Late Jaiprakash Singh
8. Ravi Pratap Singh @ Pintu Singh
9. Rajat Kumar @ Balhe Singh
10. Rita Kumari @ Budki all sons and daughter of late Jaiprakash Singh
11. Ajay Singh
12. Babloo Singh
13. Mantu Singh all sons of late Dharmendra Singh, grandson-in-law of Kuber
Singh
14. Abhay Sharan Singh
15. Subodh Singh both sons of Randhir Singh
16. Harbansh Rai S/o Durga Rai All residents of Village - Ramchandrapur, P.S. -
Thawe, District - Gopalganj.
17. Radhika Devi W/o Baban Manjhi
18. Vijendra Kumar Manjhi
19. Narendra Kumar Manjhi all sons of Ramprit Manjhi all residents of Village -
Khargaouli, Jalalpur, P.S. Kuchaikote, District - Gopalganj.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Pankaj Kumar Dubey, Advocate
For the Respondent/s : Mr. Nagendra Rai, Advocate
Mr. Nawin Nikunj, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Patna High Court C.Misc. No.1702 of 2017 dt.28-02-2025
2/8
Date : 28-02-2025
Heard learned counsel for the petitioners as well as
learned counsel for the respondents and I intend to dispose of
the present petition at the stage of admission itself.
02. The petitioners are aggrieved by the order dated
30.06.2017
passed by the learned Sub Judge-VI, Gopalganj in
Title Suit No. 589 of 2005, whereby and whereunder the learned
trial court rejected the amendment petition dated 27.04.2017
filed by the plaintiffs/petitioners under Order VI Rule 17 of the
Code of Civil Procedure (for short 'the Code').
03. Learned counsel for the petitioners submits that
the petitioners are the plaintiffs before the learned trial court and
they have filed Title Partition Suit No. 589 of 2005 for their
claim of half share of the suit property apart from other relief(s).
The matter proceeded and the plaintiffs adduced their evidence
and while the matter was at the stage of evidence of the
plaintiffs, the plaintiffs filed an application dated 27.04.2017
under Order VI Rule 17 of the Code for amendment in the
plaint. The defendants filed their rejoinder on 25.05.2017,
challenging the maintainability of the amendment petition. The
learned trial court, vide order dated 30.06.2017, rejected the
prayer made by the plaintiffs for amendment, which is under
Patna High Court C.Misc. No.1702 of 2017 dt.28-02-2025
challenge before this Court.
04. Learned counsel for the petitioners further submits
that the amendments sought to be introduced are quite formal in
nature and would help in just and fair decision of the case and
for this reason, the learned trial court ought to have allowed the
amendment petition. The learned trial court did not consider that
that the it is a suit for partition and merely addition of some
property would not prejudice the other side, even if it has been
sought at the stage of the evidence of the plaintiffs. Further, the
learned trial court did not consider the fact that no prejudice
would be caused to other side if the proposed amendments are
allowed, which are quite formal in nature. Thus, the learned
counsel submits that the impugned order is bad in the eye of law
and same needs to be set aside.
05. Learned counsel appearing on behalf of the
respondents submits there is no infirmity in the impugned order
and the same does not need any interference. Learned counsel
further submits that the amendment petition itself was not
maintainable as it has become time barred since the suit was
filed in the year 2005 and the amendment has been brought in
the year 2017, that too, after commencement of the trial and
when the plaintiffs have already examined eight witnesses. The
Patna High Court C.Misc. No.1702 of 2017 dt.28-02-2025
plaintiffs/petitioners utterly failed to show why the amendments
could not sought to be introduced earlier and prior to
commencement of the trial. Learned counsel further submits
that, moreover, a large number of amendments were sought to
be incorporated in the plaint and a number of new facts have
been mentioned in the amendment application. If all the facts
were in the knowledge of the plaintiffs, they ought to have
brought these facts earlier and not at this stage. Learned counsel
further submits that the evidence of the defendants was closed
and when the matter was at fag end when the evidence of the
plaintiff was being closed and the matter was to be fixed for
argument, the amendment petition was filed. Learned counsel
further submits that the original plaintiff was himself a Teacher
and was in quite fit condition when he filed the suit and he died
after his evidence was closed. So, any averment about the
original plaintiff not mentioning all the facts or not bringing all
the properties or filing a piece-meal plaint is not sustainable.
The plaintiffs/petitioners have failed to show any due diligence
for not bringing the amendment earlier in time. Thus, the
learned counsel submits that there is no infirmity in the
impugned order and the same be sustained.
06. I have given my thoughtful consideration to the
Patna High Court C.Misc. No.1702 of 2017 dt.28-02-2025
rival submission of the parties and perused the record.
07. 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 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
party could not have raised the matter before
the commencement of trial."
08. From bare perusal of the provision, it is clear that
the Court would not allow any amendment after the
commencement of trial unless a party can show that despite due
diligence, the amendment could not have been sought earlier in
time. So seeking the amendment at this stage is bad as trial has
not only commenced but it has also reached at its final stage.
09. Bare perusal of the amendment application shows
it is an amendment petition of 11 pages and a large number of
amendments have been sought in the plaint. Even the
amendments have been sought when the evidence of the
defendants has been closed and thereafter plaintiffs also got
Patna High Court C.Misc. No.1702 of 2017 dt.28-02-2025
examined all their witnesses on their behalf. For due diligence,
the plaintiffs have just mentioned that late father of the plaintiffs
(original plaintiff) was quite old person and at the time of filing
of the plaint, he failed to mention all the properties and also the
genealogical tree and except for one property, partition of all
other properties which have been left to be mentioned, has been
sought by this amendment. Thereafter, altogether 17
amendments have been sought including amendment in the
details of property. I do not think such type of amendments
could be allowed and at this stage. Firstly, the amendment
petition seems to be made for overhauling the plaint and in the
garb of amendment overhauling of the plaint could not be
allowed. Reference could be made of the decision of Hon'ble
Supreme Court in the case of Life Insurance Corporation of
India v. Sanjeev Builders (P) Ltd., reported in 2022 SCC
OnLine SC 1128, wherein it has been held that 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. Secondly, the
amendment has been sought at a late stage when the parties
have already recorded their evidence. Even the reasons
mentioned for the amendment does not inspire any confidence.
Patna High Court C.Misc. No.1702 of 2017 dt.28-02-2025
Merely saying that the original plaintiff did not mention the fact
appears to be absurd. Therefore, the amendment sought by the
plaintiff/petitioner is clearly barred under the proviso to Order
VI Rule 17 of the Code. The plaintiff/petitioner have utterly
failed to show that despite due diligence they could not have
raised the matter earlier in time. Hence, such amendment will be
hit by proviso to Order VI Rule 17 of the Code. 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 6 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 earlier raised the
issue. The Hon'ble Supreme 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.
10. In the light of discussion made here-in-before, I
do not find any infirmity in the impugned order and do not find
Patna High Court C.Misc. No.1702 of 2017 dt.28-02-2025
the learned trial court has committed any error of jurisdiction
and hence, the impugned order dated 30.06.2017 passed by the
learned Sub Judge-VI, Gopalganj in Title Suit No. 589 of 2005
is hereby affirmed.
11. Accordingly, the present petition stands dismissed.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 08.03.2025
Transmission Date NA
