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2002 DIGILAW 41 (PAT)

Suresh Lal Srivastava v. Raghunath Srivastava

2002-01-09

NAGENDRA RAI

body2002
Judgment 1. This civil revision application is directed against the part of the order dated 15.2.2001, passed by the learned Subordinate Judge, VIIth, Chapra in Title Suit No. 160/95 by which he has rejected the main amendment sought for by the plaintiffs petitioners. 2. The petitioners filed a suit for partition against the defendants. Apart from the other statement of facts stated in paragraph 15 of the plaint, the claim of the defendants first set of having purchased the properties in auction sale was challenged as nullity. 3. During the pendency of the suit, the plaintiffs filed a petition for amendment of the plaint. So far as the prayer regarding formal amendment is concerned that was not objected to by the defendants-opp. parties and the same was allowed. However, the defendants objected to the prayer made on behalf of the plaintiffs for amendment of the plaint wherein they wanted insertion of the fact that earlier suit brought by the ex-landlord in pursuance of which an auction sale was held and the defendants first set claimed to have purchased the property in auction sale was not binding on them and the same was a nullity in the eye of law. 4. The court below has rejected the aforesaid amendment. Hence the present civil revision application. 5. The counsel appearing for the petitioners submitted that the necessary facts challenging the earlier auction sale was already stated in paragraph 16 of the plaint and the amendment sought for was only an elaboration or development of assertion made in the said paragraph and as such, there was no question of making a new case in the garb of amendment. 6. The learned counsel appearing for the defendants-opp. parties, on the other hand, submitted that the amendment sought for would not only change the nature of the suit but is also barred by limitation as the plaintiffs challenged the decree as well as the proceeding of the. execution case and auction sale held long back. 7. The Order 6 Rule 17 of the Code of Civil Procedure does not put any restriction on the power of the court to allow the amendment of the plaint. By judicial pronouncement certain guiding principles have been laid down which govern the grant or refusal of the amendment of the plaint. execution case and auction sale held long back. 7. The Order 6 Rule 17 of the Code of Civil Procedure does not put any restriction on the power of the court to allow the amendment of the plaint. By judicial pronouncement certain guiding principles have been laid down which govern the grant or refusal of the amendment of the plaint. The amendment sought for it to be allowed if the same is necessary for settling the controversy between the parties. In other word, it will result in preventing the multiplicity of the suits. However, if the amendment introduces a new case, it is barred by limitation or the amendment takes away the admission made by the parties, then the court may reject the prayer of amendment. The delay in making the prayer for amendment by itself is no ground to refuse the same if as stated the amendment is necessary for settling the controversy between the parties and neither changes the nature of the suit nor takes the defendants by surprise. If something has happened subsequent to the institution of the suit and that is to be brought on the record for settling the controversy between the par ties then that fact also be brought for by way of amendment. 8. From the perusal of the pleadings and the plaint, it is clear that in paragraph 16 of the plaint the plaintiffs have also challenged the auction sale held earlier in pursuance of the decree of the Court. By the amendment the plaintiffs-petitioners have not introduced a new case. On the other hand, it has developed or elaborated the facts already stated in the plaint itself. 9. The learned counsel appearing for the defendants relied upon a judgment of the Supreme Court in the case of Radhika Devi V/s. Bajrangi Singh & Ors., reported in AIR 1996 S.C. 2358 and the judgment of this Court taking the same view. The said cases are not applicable in this case. In the case of Radhika Devi (supra) the plaintiffs challenged the deed of gift executed long back and claim on the date of filling of the amendment petition was barred by Imitation and in that case the Apex Court held that such amendment cannot be allowed. As stated, such is not the case here. In the case of Radhika Devi (supra) the plaintiffs challenged the deed of gift executed long back and claim on the date of filling of the amendment petition was barred by Imitation and in that case the Apex Court held that such amendment cannot be allowed. As stated, such is not the case here. The foundation for challenging the earlier suit, the execution proceeding and auction sale held in pursuance of the decree in that case was already stated in the plaint and the amendment has only elaborated or developed the statements made in paragraph 16 of the plaint. Thus, the amendment sought for neither introduces a new case nor changes the nature of the On the other hand, the same is necessary for a just decision in the case. 10. Accordingly, the application is allowed and the order passed by the court below is set aside. The amendment is subject to the right of rebuttal to the defendants opp. parties.