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1996 DIGILAW 807 (PAT)

Dhaneshwar Mandal v. Debi Prasad Singh

1996-12-12

CHOUDHARY, S.N.MISHRA

body1996
ORDER The defendant are the petitioners in this civil revision application, who have challenged the order dated 24.8.1993 passed by the appellate court, whereby allowed the amendment sought for by the plaintiff in his plant. The plaintiff opposite party filed a suit for declaration that two sale deeds executed by defendant no.1 in favour of defendants 2 and 3 and the second sale deed executed in favour of defendant no.3 to defendant no.2 are void illegal and not binding upon the plaintiff and further for declaration of title and recovery of possession of the suit land fully described in the schedule of the plaint, which was registered as Title suit No. 271/85. The defendants appeared and filed their written statement. Issues were framed on the pleadings of the parties. The evidences were led in support of their respective cases. Ultimately, on the basis of the evidence both oral and documentary, the trial court by its judgment and decree dated 15.1.91 dismissed the suit filed by the plaintiff. Against the said judgment and decres the defendant petitioners filed an appeal which registered as Title Appeal No. 34 of 1991. During the pendency of the appeal the plaintiff filed an application under order 6 Rule 17 CPC for amendment of the plaint, copy of the petition is made Annexure–4 to this civil revision application and the details of the amendment sought for are mentioned at page 74–75.The appellate court after hearing the parties and taking into consideration the relevant aspects of the matter has allowed the amendment sought for by the plaintiff. Learned counsel for the petitioners has challenged the order of the court below allowing the amendment or the plaint on the ground firstly that the amendment sought for by the plaintiff should not have been allowed at the appellate stage. It is stated that by the impugned amendment the entire nature of the suit will change and it will cause prejudices to the defendants as neither the pleadings were available nor any evidence has been led in support of the claim of the respective parties before the trial court. In sum and substance of the learned counsel for the petitioners is that if the amendment sought for by the plaintiff is allowed the case of the defendants will be prejudiced. In sum and substance of the learned counsel for the petitioners is that if the amendment sought for by the plaintiff is allowed the case of the defendants will be prejudiced. In support of his submission learned counsel for the petitioner has relied upon the decisions in the case of Lakshmi Sao Vs. Swaroop Chand Jain, reported in AIR 1974 Patna 378, P.H. Patil vs. K.S. Patil, reported in 1957 SC 363and the latest decision in the case of Radhika Devi vs. Bajrangi Singh & ors reported in 1996 (2) BLJR1978. In the Patna decision (supra) it has been held that if the claim is barred by limitation that claim cannot be allowed by way of amendment of the plaint. In 1957 Supreme Court (supra) it has been held that if the right has accused by a lapse of time and the amendment sought for will take away the said right and in that event the amendment should not be allowed. So far the principle laid down in those cases are not in dispute. From perusal of the averments made in plaint as well as the proposed amendment, in my view, the amendment sought for is not–for but the same is an amplification of the averments made in the plaint and, as such, it cannot be said that by the proposed amendment either the nature of the suit will change or the defendants are going to be prejudiced in their case. However, apprehension of the learned counsel for the petitioners is that in absence of the pleadings and/or evidence the dispute in relation to the claim through amendment cannot be decided and for which additional pleadings and the evidence are required to be adduced in rebuttal of the claim of the petitioners on the basis of the amendment of the plaint. As I have stated above, prima facie, it appears that in this case the amendment sought for is nothing but an amplification to the averments made in the plaint. However, if the appellate court thinks it proper to have additional evidence on the issues in hand the appellate court can call for fresh findings from the trial court allowing the parties to lead additional evidence. However, if the appellate court thinks it proper to have additional evidence on the issues in hand the appellate court can call for fresh findings from the trial court allowing the parties to lead additional evidence. In this case it appears that the plaintiff is also not diligent in prosecuting his case as throughout the trial no such amendment petition was filed though the facts were in the knowledge of the plaintiff. Heard learned counsel for the petitioners and opposite party and perused the order under challenge. For the reasons stated above, I am not inclined to interfere with the order passed by the court of appeal below and accordingly, this civil revision application is dismissed subject to the condition that the plaintiff opposite party will deposit a sum of Rs. 1000/-in the court below by way of cost to be paid to the defendants within four weeks failing which this order shall not be given effect to. Application dismissed with observation.