Patna High Court
Mahatam Yadav And Ors vs Chhathu Mallah And Anr on 7 January, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1602 of 2017
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1. Mahatam Yadav and Son of Late Nihora Yadav
2. Sheo Pujan Yadav Son of Late Saryu Yadav
3. Nandjee Yadav Son of Late Saryu Yadav
4. Most. Yotia Kuer Wife of Late Nihora Yadav All are residents of Village
Kabirpur Tola Emlami P.O. Kabirpur, P.S. Mairwa, District Siwan.
... ... Petitioner/s
Versus
1. Chhathu Mallah and Son of Late Lalji Mallah
2. Bhola Prasad @ Bhola Mallah Son of Late Ramautar Malllah Both are
residents of Village Kabirpur, Tola, Emlahi, P.O. Kabirpur, P.S. Miruja,
District - Siwan.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Akhileshwar Kumar Shrivastva, Adv.
For the Respondent No. 2 : Mr. Ajay Kumar Pandey, Adv.
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 07-01-2025
Heard learned counsel for the petitioners as well as
learned counsel for the respondents.
2. The petitioners are aggrieved by the order dated
30.06.2017
passed by learned Munsif 2nd, Siwan in Title Suit
No. 10 of 2011 whereby and whereunder the learned trial court
refused the prayer of the petitioners in the petition filed under
Order 6 Rule 17 of the Code of Civil Procedure (in short "the
Code") for making amendment in the written statement.
3. The learned counsel for the petitioners submits that
petitioners are defendants before the learned trial court in Title
Patna High Court C.Misc. No.1602 of 2017 dt.07-01-2025
Suit No. 10 of 2011 filed by the plaintiffs/respondents. The suit
has been filed against the defendants for declaration that
plaintiffs have right of easement over the land in question by
utilizing the same as their own pathway. The use of the pathway
was obstructed by the defendants/petitioners. The plaintiffs
claimed that their residential house is situated over Khata No.
268, Survey Plot No. 756 in Village Kabirpur, Tola Emlahi, P.S.
Mairwa, Siwan. The plaintiffs further claimed that Survey Plot
No. 747 and 748 are ancestral homestead land of the plaintiffs
which is situated in the middle of Survey Plot No. 756 and
village road Survey Plot No. 710. Plaintiffs have been using the
North boundary of Plot No. 756 and middle of East boundary of
Survey Plot No. 748 and Survey Plot No. 747 and utilizing the
same as their pathway since long. After summons the
defendants/petitioners appeared and filed their written statement
denying the allegation and claim of the plaintiffs on factual and
legal aspects of the suit. The defendants/petitioners claimed that
the plaintiffs never used to go or used the village road by
crossing the boundary line of Survey Plot No. 747 and 748. In
the year 1992, the plaintiff no. 2 built his house facing east upon
Survey Plot No. 756 which is just adjacent to West Plot No. 757
on which there was a hut of plaintiff no. 1. There is vacant land
Patna High Court C.Misc. No.1602 of 2017 dt.07-01-2025
in between the house of plaintiff no. 2 and plaintiff no. 1 and
there is also vacant land of Survey Plot No. 756 towards South
of house of plaintiff no.2. Plaintiffs have been utilizing the said
vacant land as pathway to go to village road adjacent to Plot No.
710. During pendency of the suit, when the suit was at
preliminary stage and issues have not been framed, the
petitioners filed an application under Order 6 Rule 17 of the
Code on 23.11.2015 seeking amendment in para 20 of their
written statement. On 06.02.2016 the plaintiffs/ respondents
filed rejoinder to the amendment petition filed by the petitioners
raising objection that the proposed amendments are malafide
and unnecessary and the same would create complication. On
30.06.2017 the learned trial court, after hearing the parties,
rejected the amendment petition of the petitioners. The said
order is under challenge before this Court.
4. Learned counsel for the petitioners further submits
that the impugned order has been passed only on the ground that
new facts are being introduced by virtue of amendment
application filed on behalf of the petitioners. Learned counsel
further submits that the amendment sought to be brought on
record by the petitioners are clarificatory in nature. In the
written statement, the petitioners have stated that the plaintiffs
Patna High Court C.Misc. No.1602 of 2017 dt.07-01-2025
have been utilizing their pathway for approaching the village
road which existed on Survey Plot No. 710 through North-east
of Survey Plot No. 757 and 759 but how many plots lie in
between Survey Plot No. 757 and Plot No. 710 and how many
plots are crossed for approaching the Plot No. 710 could not be
mentioned in the written statement. The petitioners want to
clarify the position by way of the amendment. Even the
rejoinder of the plaintiff is silent on the merits and a vague
objection has been raised that amendment is malafide and
unnecessary and the same may create complication. Learned
counsel further submitted that learned trial court committed
error while passing the impugned order and misdirected it by
recording the finding which is completely illegal. The
amendment does not introduce any new facts and the same is
purely clarificatory in nature. Lastly, the learned counsel
submits that impugned order is not sustainable and the same be
set aside.
5. Learned counsel appearing on behalf of the
respondents submits that there is no infirmity in the impugned
order and it is an order wherein the contention of the petitioners
have been taken into consideration and therefore, the learned
trial court did not find any merit in the application for
Patna High Court C.Misc. No.1602 of 2017 dt.07-01-2025
amendment and dismissed the same. The petitioners want to
bring unnecessary complication in the case through the
amendments and they want to make out a new case. Learned
counsel further submits a valuable right has accrued to the
plaintiffs/respondents and the petitioners want to nullify the said
right. Thus learned counsel submits that the application for
amendment has rightly been rejected as it was malafide and
malicious. Learned counsel further submits that no passage
existed which may be used as pathway as claimed by the
defendants. Moreover, if the defendants/petitioners have any
such claim they could have asked for appointment of Survey
Knowing Pleader Commissioner and could have asked for its
report to show the existence of any such pathway. Thus, learned
counsel submits that there is no infirmity in the impugned order
and the same needs no interference.
6. I have given my thoughtful consideration to the
rival submission of the parties and perused the record.
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 pleading 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
Patna High Court C.Misc. No.1602 of 2017 dt.07-01-2025
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".
8. Apparently, the amendment has been sought prior
to settlement of the issues. However, the amendment has been
sought in the written statement and the standard for allowing the
amendment for plaint and written statement differs. The
defendants are allowed to take contradictory or even
inconsistent plea in their written statement and amendment in
written statement are more liberally allowed. The decision of the
Hon'ble Supreme Court in the case of Usha Balashaheb Swami
and Ors. vs. Kiran Appaso Swami and Ors., (2007) 5 SCC 602
is on the point of different yardsticks for amendment in plaint
and written statement and paragraph no.19 of the said judgment
reads as under:-
"19. It is equally well-settled principle that a
prayer for amendment of the plaint and a prayer
for amendment of the written statement stand on
different footings. The general principle that
amendment of pleadings cannot be allowed so as
to alter materially or substitute cause of action or
the nature of claim applies to amendments to
plaint. It has no counterpart in the principles
relating to amendment of the written statement.
Therefore, addition of a new ground of defence or
substituting or altering a defence or taking
inconsistent pleas in the written statement would
not be objectionable while adding, altering or
substituting a new cause of action in the plaint
may be objectionable."
Patna High Court C.Misc. No.1602 of 2017 dt.07-01-2025
9. Similar view has been taken by the Hon'ble
Supreme Court in the case of Sushil Kumar Jain vs Manoj
Kumar & Anr. reported in AIR 2009 SC 2544 relying on Usha
Balashaheb Swami (Supra) wherein it has been held in
paragraph 10 and 11 as under:
"10. At this stage, we may remind ourselves that
law is now well settled that an amendment of a
plaint and amendment of a written statement are
not necessarily governed by exactly the same
principle. Adding a new ground of defence or
substituting or altering a defence does not raise
the same problem as adding, altering, substituting
a new cause of action (See Baldev Singh & Ors.
vs. Manohar Singh & Anr. AIR 2006 SC 2832).
11. Similar view has also been expressed in Usha
Balashaheb Swami & Ors. Vs. Kiran Appaso
Swami & Ors. AIR 2007 SC 1663. It is equally
well settled that in the case of an amendment of a
written statement, the Courts would be more
liberal in allowing than that of a plaint as the
question of prejudice would be far less in the
former than in the latter and addition of a new
ground of defence or substituting or altering a
defence or taking inconsistent pleas in the written
statement can also be allowed."
10. Coming to the facts of the case, the suit is at its
initial stage and the amendment sought by the
defendants/petitioners is with regard to mentioning of plots
lying in between Survey Plot No. 757 and Survey Plot No. 710.
This would not even amount to introducing any new fact or
causing prejudice to the plaintiffs/respondents or could not be
said to be malafide. Rather, the amendment sought by the
Patna High Court C.Misc. No.1602 of 2017 dt.07-01-2025
petitioners may help the learned trial court in arriving at a just
decision.
10. Considering the aforementioned facts and
circumstances, I think the learned trial court committed error of
jurisdiction while passing the impugned order and the same
could not be sustained. Hence, the impugned order dated
30.06.2017 is set aside and the application dated 23.11.2015 is
allowed.
11. Accordingly, the present petition stands allowed.
12. However, it goes without saying that learned trial
court would provide sufficient opportunity to the respondents
for rebutting/controverting the amendment, if they so desire.
(Arun Kumar Jha, J)
Anuradha/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 09.01.2025
Transmission Date N/A
