Raja Ram Choudhary vs Aditya Chandra Jha
2025 Latest Caselaw 207 Patna

Patna High Court

Raja Ram Choudhary vs Aditya Chandra Jha on 12 May, 2025

Author: Arun Kumar Jha

Bench: Arun Kumar Jha

         IN THE HIGH COURT OF JUDICATURE AT PATNA
            CIVIL MISCELLANEOUS JURISDICTION No.181 of 2021
     ======================================================
     Raja Ram Choudhary Son of Late Bal Krishna Choudhary Resident of
     Village- Kharhara, P.S.- Barahat, District- Banka, State- Bihar.

                                                                   ... ... Petitioner
                                        Versus
1.   Aditya Chandra Jha Son of Late Ishan Chandra Jha Resident of Village
     Karhara, P.O. Karhara, P.S. Barahat, District Banka, State- Bihar.
2.   Bibhash Chandra Jha Son of Late Prem Chandra Jha Resident of Village
     Karhara, P.O. Karhara, P.S. Barahat, District Banka, State- Bihar.
3.   Ravi Chandra Jha Son of Late Hem Chandra Jha Resident of Village
     Karhara, P.O. Karhara, P.S. Barahat, District Banka, State- Bihar.
4.   Rajesh Chandra Jha Son of Late Hriday Chandra Jha Resident of Village
     Karhara, P.O. Karhara, P.S. Barahat, District Banka, State- Bihar. Presently
     residing at Hazaribagh, Behind Mount Carmel School, Hazaribagh, P.O.,
     P.S., Sub Division and District Hazaribagh, Jharkhand.
5.   Brajesh Chandra Jha Son of Late Ishan Chandra Jha Resident of Village
     Karhara, P.O. Karhara, P.S. Barahat, Sub-Division and District Banka, State-
     Bihar.
6.   Akhilesh Chandra Jha Son of Late Ishan Chandra Jha Resident of Village
     Karhara, P.O. Karhara, P.S. Barahat, Sub-Division and District Banka, State-
     Bihar.
7.   Ratnesh Jha Son of Late Jai Chandra Jha Resident of Village Karhara, P.O.
     Karhara, P.S. Barahat, Sub-Division and District Banka, State- Bihar.
8.   Nikhilesh Chandra Jha Son of Late Gyan Chandra Jha Resident of Village
     Karhara, P.O. Karhara, P.S. Barahat, Sub-Division and District Banka, State-
     Bihar.
9.   Amaresh Chandra Jha Son of Late Gyan Chandra Jha Resident of Village
     Karhara, P.O. Karhara, P.S. Barahat, Sub-Division and District Banka, State-
     Bihar.
10. Krishna Chandra Jha Son of Hem Chandra Jha Resident of Village Karhara,
    P.O. Karhara, P.S. Barahat, Sub-Division and District Banka, State- Bihar.
11. Sheo Chandra Jha Son of Hem Chandra Jha Resident of Village Karhara,
    P.O. Karhara, P.S. Barahat, Sub-Division and District Banka, State- Bihar.
12. Prakash Chandra Jha Son of Hem Chandra Jha Resident of Village Karhara,
    P.O. Karhara, P.S. Barahat, Sub-Division and District Banka, State- Bihar.
13. Prabhash Chandra Jha Son of Late Prem Chandra Jha Resident of Village
    Karhara, P.O. Karhara, P.S. Barahat, Sub-Division and District Banka, State-
    Bihar.
14. Mihir Chandra Jha Son of Late Prem Chandra Jha Resident of Village
    Karhara, P.O. Karhara, P.S. Barahat, Sub-Division and District Banka, State-
    Bihar.

                                                                 ... ... Respondents
 Patna High Court C.Misc. No.181 of 2021 dt.12-05-2025
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       ======================================================
       Appearance :
       For the Petitioner/s      :        Mr. Ujjwal Kumar Mishra, Advocate
       For the Respondent/s      :        Mr. Amit Kumar Jha, Advocate
       ======================================================
       CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
                           ORAL JUDGMENT
         Date : 12-05-2025

                      The matter has been taken up on mentioning being

         made on behalf of the petitioner.

                      02. Heard the learned counsels for the respective

         parties and I intend to dispose of the present petition at the stage

         of admission itself.

                      03. The petitioner is aggrieved by the order dated

         24.09.2019

by the learned Munsif, Banka in Title Suit No. 18 of

2018, whereby and whereunder the learned Munsif allowed the

application filed under Order VI Rule 17 r/w Section 151 of the

Code of Civil Procedure, 1908 (for short 'the Code') by the

respondent nos. 1 to 3 for amendment of the plaint.

04. Learned counsel for the petitioner submits that the

petitioner is defendant no. 11 before the learned trial court and

respondent nos. 1 to 3 are plaintiffs who have filed Title Suit

No. 18 of 2018 seeking following relief(s):-

"(i) For that a Decree be passed declaring the consideration amount paid by the Plaintiffs' father, grandfather whatsoever of the Performa Defendant and received by the Defendant's father Hriday Chandra Jha a Patna High Court C.Misc. No.181 of 2021 dt.12-05-2025

charge upon the suit property.

(ii) A mandatory injunction be passed directing the Defendant, Rajesh Chandra Jha in satisfaction of charge to execute Sale Deed annexed to the suit property in favour of the plaintiff and other Performa Defendants.

(iii) A permanent injunction be passed directing the Defendant Rajesh Chandra Jha not to sell and convey the suit property in favour of any intending purchaser or purchasers other than the Plaintiffs and Performa Defendants.

(iv) Any other relief or relief(s) as this learned court deemed to be just and proper and the plaintiff is entitled for."

Learned counsel for the petitioner further submits that

the defendant no. 11 was not made party in the suit at the time

of filing of the suit and subsequently, he was impleaded as party,

who appeared and filed his written statement on 02.03.2019.

During pendency of the suit, an application under Order VI Rule

17 of the Code has been filed by the plaintiffs No. 1 to 3 on

29.04.2019 whereby a number of amendments were sought to

be made in the plaint. The petitioner/defendant no. 11 and

defendant no. 1/respondent no. 4 have filed joint objection to the

said amendment application.

Patna High Court C.Misc. No.181 of 2021 dt.12-05-2025

05. Learned counsel for the petitioner further submits

that by way of said amendment application, the plaintiffs have

tried to change the nature of the suit. Learned counsel referred

to Paragraph-10 of the plaint along with the amendment sought

to be incorporated as Paragraph-10(b) submitting that though

the petitioner is purchaser of limited portion of the suit proerty

and the suit property was sold to a number of persons, only the

petitioner has been made party and relief has been sought

against him. Learned counsel further submits that earlier the suit

was filed for declaration that the consideration amount paid by

the plaintiffs' father, grandfather and whatsoever of the

proforma defendant and received by the defendant's father,

Hriday Chandra Jha, was a charge upon the suit property and

subsequently a mandatory injunction in this regard has also been

sought that the defendant, Rajesh Chandra Jha, be directed to

execute sale deed annexed to the suit property in favour of the

plaintiff and other proforma defendants in satisfaction of the

charge. Now the plaintiff nos. 1 to 3 want to add a relief that the

sale deed executed by Rajesh Chandra Jha in favour of the

petitioner was void-ab-intio, illegal and inoperative apart from

other relief(s). Learned counsel further submits that the

amendment would completely change the nature of the case and Patna High Court C.Misc. No.181 of 2021 dt.12-05-2025

such amendment could not be allowed. Learned counsel further

submits that the amendment sought by the plaintiff nos. 1 to 3 is

not necessary for the purpose of determining the real questions

in controversy between the parties. Learned counsel further

submits that the amendment sought is beyond the pecuniary

jurisdiction of the court of learned Munsif as the suit has been

valued at Rs 4,47,000/- after amendment and the same takes out

the suit from the jurisdiction of court of learned Munsif, such

amendment could not be allowed. Learned counsel further

submits that this fact has not been taken into consideration by

the learned Munsif that the plaintiffs have filed the suit for

recovery of possession from the purchaser/defendant no. 11 and

by the amendment these plaintiffs want to set up a new case

contradicting their earlier pleading. Learned counsel further

submits that the learned trial court has not appreciated that by

way of the amendment, the plaintiffs have sought the

overhauling of the plaint. Learned counsel further submits that

grave prejudice has been caused to the defendant no. 11, as the

learned trial court did not allow him to file additional written

statement. Thus, the learned counsel submits that on these

grounds the impugned order is bad and the same needs to be set

aside.

Patna High Court C.Misc. No.181 of 2021 dt.12-05-2025

06. The contention of learned counsel for the

petitioner has been vehemently opposed by the learned counsels

appearing on behalf of respondent nos. 1, 2, 3 and respondent

no. 4. Learned counsel for respondent no. 1 to 3 submits that the

trial has not commenced and the suit is still at preliminary stage.

So, at this stage if amendment is allowed, the other side would

get ample opportunity to rebut the contention and no prejudice

would be caused to the other side. Learned counsel further

submits that in the sale deed, the vendor of the petitioner has

given the boundary of the whole of the land instead of his share

sold to the petitioner and the sale deed of the petitioner is

vague. For this reason, if this issue is not taken up for

adjudication, the dispute would remain and there would be no

final adjudication. Learned counsel further submits that partition

had already taken place amongst the co-sharers and still, if more

than the share has been sold out by one of the co-sharers, this

fact has to be brought to the notice of the court. Learned counsel

further submits that the counsel for the plaintiffs before the

learned trial court did not tell them that many relevant facts for

resolution of the disputes between the parties are left to be

mentioned in the plaint and the actual relief for which the

plaintiffs are entitled have not been mentioned in the relief Patna High Court C.Misc. No.181 of 2021 dt.12-05-2025

portion of the plaint and for this the amendments are necessary.

Therefore, for the fault of their counsel, the plaintiffs should not

be made to suffer. Learned counsel further submits that the

amendments sought to be incorporated does not change the

nature of the suit and there was no malafide intention of the

plaintiffs in seeking amendment in their plaint as the said

amendment is necessary for determination of real controversy

between the parties. Learned counsel referred to the decision of

Hon'ble Supreme Court in the case of Lakha Ram Sharma Vs.

Balar Marketing Pvt. Ltd, reported in AIRONLINE 2003 SC

749 wherein the Hon'ble Supreme Court has held that it is

settled law that while considering whether the amendment is to

be granted or not, the Court does not go into the merits of the

matter and decide whether or not the claim made therein is

bonafide or not. The Hon'ble Supreme Court further held that it

is also settled law that merely because an amendment may take

the suit out of the jurisdiction of that Court is no ground for

refusing that amendment. Thus, the learned counsel submits that

even if a pecuniary jurisdiction might change by amendment,

that is for the consideration of the trial court and on this ground,

the amendment could not be rejected. Learned counsel conceded

that as the defendants have not been given opportunity for Patna High Court C.Misc. No.181 of 2021 dt.12-05-2025

rebuttal of the amendment by allowing them to file

additional/amended written statement, the same may be allowed

otherwise it may cause prejudice to the petitioner. Thus, learned

counsel submits that there is no infirmity in the impugned order

and it does not need any interference.

07. Learned counsel appearing on behalf of

respondent no. 4 submits that no new case is being made out as

the relief in the original plaint itself mentions that consideration

amount paid the consideration amount paid by the plaintiffs'

father, grandfather of the proforma defendant and received by

the defendant's father, Hriday Chandra Jha, was a charge upon

the suit property and everything flows from it. Therefore, there

will be no change in the nature of the suit since the relief now

being sought are with regard to sale deed executed for the same

property on which the charge is being claimed.

08. I have given my thoughtful consideration to the

rival submission of the parties and perused the record. Order VI

Rule 17 of the CPC 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 Patna High Court C.Misc. No.181 of 2021 dt.12-05-2025

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".

From the first part of the provision, it is apparent that

and all such amendments could be allowed which may be

necessary for the purpose of determining the real questions in

controversy between the parties.

09. Now, the Hon'ble Supreme Court in the case of

Revajeetu Builders & Developers v. Narayanaswamy & Sons,

reported in (2009) 10 SCC 84, after a long discussion on law

relating to amendment under Order VI Rule-17 held in

Paragraph 63 as under:

"Factors to be taken into consideration while dealing with applications for amendments

63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such Patna High Court C.Misc. No.181 of 2021 dt.12-05-2025

prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."

10. Further, the 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, summarized the

law on the point of amendment in paragraph 70 in the following

manner :

"70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is Patna High Court C.Misc. No.181 of 2021 dt.12-05-2025

apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a

relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a Patna High Court C.Misc. No.181 of 2021 dt.12-05-2025

valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) 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.

Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated Patna High Court C.Misc. No.181 of 2021 dt.12-05-2025

on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed."

11. Coming back to the facts of the case, the suit is

still at the stage of settlement of issues and issues are yet to be

settled. If the trial has not commenced, the parties are in the

same situation as if the plaint has just been filed. Whatever be

the claim of learned counsel for the petitioner regarding change

of the nature, the same is hardly material at this stage. If trial

has yet to commence, there could be no prejudice or grievance

to the petitioner as the petitioner would have a chance to meet

the case set up in the amendment. It is well established rule of

law that for complete justice between the parties, to minimise Patna High Court C.Misc. No.181 of 2021 dt.12-05-2025

the litigation and to prevent unnecessary harassment, the

amendment of the pleadings can be allowed. Further, the matter

raised in the amendment would not change the original

controversy between the parties rather it is necessary for doing

complete justice and to minimise the litigation between the

parties and hence, there appears no error of of jurisdiction in

passing the impugned order by the learned trial court.

12. The learned counsel for the petitioner has also

taken objection to the fact that amendment would take out the

suit from the jurisdiction of the court of learned Munsif. But, the

issue stands settled with the decision of Hon'ble Supreme in the

case of Lakha Ram Sharma (supra) wherein it has been held

that merely because an amendment may take the suit out of the

jurisdiction of that court is no ground for refusing the

amendment. So far as claim of the learned counsel about delay

is concerned, since the trial has not commenced, delay is

immaterial. However, I find some merit in the submission of

learned counsel for the petitioner that prejudice has been caused

to the petitioner, as he has not been allowed to file

additional/amended written statement. When the trial court has

allowed the amendment application of the plaintiffs, it was

incumbent upon the learned trial court to give an opportunity to Patna High Court C.Misc. No.181 of 2021 dt.12-05-2025

the defendants for filing amended/additional written statement

and if the said opportunity was not given that would make the

order improper.

13. Having regard to aforesaid facts and

circumstances and law as laid down in the case(s) of Revajeetu

Builders & Developers (supra) and Life Insurance Corporation

of India (supra), I do not find any infirmity in the impugned

order so far as allowing the amendment application of the

plaintiffs is concerned. However, the learned trial court ought to

have given an opportunity to the defendants for filing

amended/additional written statement.

14. Therefore, the impugned order dated 24.09.2019

is affirmed with modification that the learned trial court is

directed to give ample opportunity to the defendants to

rebut/controvert the amendments sought by the plaintiffs by way

of filing an additional/amended written statement.

15. Accordingly, the present petition stands disposed

of.

(Arun Kumar Jha, J) Ashish/-

AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          16.05.2025
Transmission Date       NA