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2004 DIGILAW 871 (PAT)

Nand Kishore Sharma v. Lal Babu Sharma

2004-08-26

S.N.HUSSAIN

body2004
Judgment S.N.Hussain, J. 1. Heard learned counsel for the parties. 2. The petitioner is the sole plaintiff in Partition Suit No. 457/1998 and is aggrieved by order dated 22.7.2003 passed by the learned Sub-ordinate Judge-III, Vaishali, by which he had rejected part of the petition for amendment of his plaint. The petitioner sought five amendments in the plaint out of which amendment numbers 1 and 3 were allowed whereas amendment numbers 2, 4 and 5 with respect to Paragraph-6 (facts), Paragraph-14 (valuation) and Paragraph-15 (relief) were rejected. 3. The learned counsel for the plaintiff-petitioner submits that in Paragraph-6 of his plaint the amendment sought is only for adding a word "Hissa batakar" and for substituting the words "Ko Ataikar diya" with "Ke naam Atainama likhwa diya". He further contended that in Paragraph-14 of the plaint he wanted to add the valuation of the suit as well as the Court fees payable thereon, according to the addition of relief. The learned counsel for the petitioner further contended that in Paragraph-15 of the plaint he wanted to add a further relief for declaration of "Ateinama" dated 4.6.1986 by Lalpari Devi in favour of Shiv Dulari Devi as void and also for change of share from half (1/2) to 7/18th. The learned counsel for the petitioner submitted that the amendment sought in Paragraph-6 of the plaint was only formal in nature whereas the relief sought to be added was already supported by the facts mentioned in the plaint and that the valuation and the court-fees have to be legally enhanced in view of the amendment in relief sought The learned counsel for the petitioner relied upon a decision of the Apex Court in the case of Jai Jai Ram Manohar Lal V/s. National Building Material Supply, Gurgaon, reported in AIR 1969 SC 1267 which held that relief can not be denied to be added by way of amendment. He further relied upon a decision of this Court in the case of Siyaram Kuwar @ Siyaram Kumar V/s. Mahendra Kumar and Ors., reported in 1996 (1) PLJR 921 , in which it was held that by amendment a different approach to the same matter can be added. He also submitted that evidence of the parties has started and he is yet to produce his evidence and even the evidence of the defendants has not been closed. He also submitted that evidence of the parties has started and he is yet to produce his evidence and even the evidence of the defendants has not been closed. He further contended that no question of limitation is attracted in the instant matter as the entire fact has already been mentioned in the original plaint itself. He also contended that the amendment sought is necessary for full, proper and final adjudication of the suit. 4. On the other hand, the learned counsel for the Opposite parties vehemently opposes the contention of the learned counsel for the petitioner and submits that the plaintiff-petitioner had full knowledge of "atainama" at the time of filing of the suit as is apparent from the plaint itself as well as the criminal cases which the plaintiff had lodged against the defendants which have been dismissed. He further contended that the plaintiff did not take any step to add the said reliefs by way of amendment for about five years and only when the trial of the suit has reached its final stage that this amendment petition has been filed hence according to the proviso to the amended Order-VI, Rule-17, CPC such amendments should not have been allowed. He further contended that the reliefs which the plaintiff wants to add in the plaint by way of amendments is contradictory to the pleadings made in the plaint, as in the plaint the said "Atainama" is claimed to be a void document whereas in the relief sought to be amended the prayer is made to declare it void treating it as voidable document and hence in the aforesaid circumstances such amendment is not fit to be allowed. The learned counsel for the Opposite parties also contended that the relief for declaration that the Atainama" is void can not be claimed at this stage as it is barred by law of limitation because the said deed is admittedly of the year 1986 whereas the suit was filed much beyond the period of three years in the year 1998 and the amendment petition was filed in the year 2003. The learned counsel for the Opposite parties also contended that already six witnesses of the defendants have been examined out of which DW 6 was the defendant himself (O.P. No. 1). The learned counsel for the Opposite parties also contended that already six witnesses of the defendants have been examined out of which DW 6 was the defendant himself (O.P. No. 1). In the aforesaid circumstances, the learned counsel for the Opposite parties submits that the amendments sought by the plaintiff-petitioner can not be validly allowed. 5. After hearing the learned counsel for the parties and after perusing the materials on record including the impugned order as well as various decisions cited by the parties, I find that there are arguable points on both the sides. But the said points can not be decided at this stage specially in view of the latest decision of the Apex Court in case of Prem Bakshi and Ors. V/s. Dharam Dev and Ors., reported in 2002 (2) PLJR (SC), 187, in which it has been held that it can not envisage a situation where amendment of pleadings, irrespective of its nature, would even remotely cause failure of justice or irreparable injury to any party and amendment of pleadings do not amount to decisions on the issues involved which have to be decided at the time of final hearing of the suit. 6. So far the question raised by the learned counsel for the Opposite parties regarding delay in filing of the amendment petition and the applicability of proviso to Order-VI, Rule-17 is concerned, it wjll.be apt to mention here that out of the five amendments sought the learned court below has allowed two amendments which has not been challenged by the Opposite parties. Furthermore, evidence has started and, if the defendants so like, may amend their pleadings or lead evidence in view of the amendments in the plaint and hence the defendants would not be put to any loss, rather all the issues in the suit will be fully and finally adjudicated and all the points decided, as both the parties will take all the points available to them, including those taken before this Court at the time of final hearing of the suit. 7. With the aforesaid observations, this civil revision is allowed and the impugned order of the learned Court below is set aside so far it relates to the rejection of amendment numbers 2, 4, and 5 of the plaint and the prayer for amendment is allowed.