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1988 DIGILAW 145 (PAT)

Rajendra Singh v. Murari Frasad Agrawal

1988-04-12

SATYABRATA SINHA

body1988
Judgment S. B. Sinha, J. 1. This revision application is directed against the order dated 22-8-1986, passed by Shri Vidyuta Prabha Singh, Subordinate Judge, Bhabhua in T. S, No.1295 of 1970, whereby the court below purported to have rejected the application filed on behalf of the petitioner to the eiftct that the suit stands abated in terms, of Sec.4 (C) of the Bihar Consolidation of Holdings and prevention of Fragmentation Act, in spite of the amendment carried out by the plaintiff. 2. The facts of the case lie in a very narrow compass. The opposite-parties filed the aforementioned suit inter alia for declaration of his title and other consequential reliefs. The learned court below by an order dated 5th November, 1976 held that the suit has abated. Against the said order the opposite-parties filed a civil revision application in this Hon ble Court, which was allowed being civil Revision No.128 of 1977. The said civil revision application was disposed of by a judgment dated 15-9-1982, whereby and whereunder this Court held as follows : "if the plaintiff deletes the words "title and interest", in prayer No.1, then the suit as it is, will proceed in accordance with law. For that purpose the plaintiff will have to file amendment petition. " 3. The opposite parties purported to be in terms of the said order filed an application for amendment of the plaint. The said amendment was allowed by an order dated 13-9-1982. However, inspite of the leave having been granted to the plaintiff-opposite-parties to amend their pleadings, in terms of Order VI, rule 18 of the Civil Procedure Code, the plaintiff-opposite-parties allegedly failed to amend the plaint within the stipulated period of 15 days. The petitioners, thereafter filed two applications before the learned court below ; one of them was to the effect that even if it be held that the amendment was carried out, still then the suit has abated in terms of Sec.4-C of the Act. The petitioners further filed an application to the elfect that as the plaintiffs did not amend the plaint after the leave was granted by the Court therefore within the stipulated period as contemplated under Order VI, Rule 18 of C. P. C. , the said amendment should not be given effect to. By the impugned order, the learned court below has rejected the second application filed on behalf of the petitioner. By the impugned order, the learned court below has rejected the second application filed on behalf of the petitioner. However, the learned court below does not seem to have considered the first application filed on behalf of the petitioner. 4. True it is that in the judgment passed by this Court in Civil Revision application No.128 of 1977, this Court held that if the plaintiffs tiles an amendment petition deleting the word hakiyat in paragraph 1 of the relief portion, the court below would allow the petition and then the suit will proceed in accordance with law. But from the very fact that the learned Judge of this Court directed that the suit will proceed in accordance with law, the same by necessary implication meant that even if by amendment, the substance of the nature, of the reliefs sought for does not changed in such a case, the court will be at liberty to hold that the suit has abated in terms of section 4 (C) of the Act. It may be useful to mention that section 4 (C) bars the jurisdiction of the court to proceed with the case in the event, if it be held that the suit has abated in view of the reliefs sought for the plaintiffs. The Court, therefore, will have no jurisdiction to proceed with the suit in case the suit comes within the purview of Sec.4 (C) of the Act. It is also well known that for the purpose of deciding as to what is the real nature of the suit, the real intent and purport of the reliefs sought for by the plaintiff or the prayers made in the plaint itself are not decisive. For that purpose, the Court has to look to the entire plaint and not only prayer portion thereof as it is well known that by reason of dexterity in drafting of pleadings, the plaintiffs cannot be permitted to claim some reliefs indirectly which they have not prayed for directly. 5. For that purpose, the Court has to look to the entire plaint and not only prayer portion thereof as it is well known that by reason of dexterity in drafting of pleadings, the plaintiffs cannot be permitted to claim some reliefs indirectly which they have not prayed for directly. 5. In this view of the matter while upholding the impugned order to the effect that the plaintiffs should be permitted to carry out the amendment in terms of Order VI, Rule 18 of C. P. C. , in my opinion, it would be expedient that the learned Court below considers the first application filed on behalf of the petitioners to the effect as to whether the suit has abated in terms of Sec.4 (C) of the Act inspite of the fact that the amendment has been carried out. The petitioner, if so advised may file a fresh application before the learned court below for that purpose. 6. With the aforementioned directions and observations, this civil revision application is disposed of. However, there will be no order as to cost. Revision decided accordingly.