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2005 DIGILAW 228 (PAT)

Vinoy Kumar Gupta v. Ambika Mishra

2005-03-01

S.N.HUSSAIN

body2005
Judgment S.N.Hussain, J. 1. The petitioners are defendants in Title Suit No. 9 of 2004 (38 of 2001) which was filed by the sole opposite party for declaration of his title and for permanent injunction against the defendants and for other ancillary reliefs. 2. The defendants-petitioners are aggrieved by order dated 15.12.2004, passed in the aforesaid suit by which the learned Munsif (Execution), Gaya, had allowed the plaintiffs petition for amendment of his plaint. 3. The learned counsel for the petitioners vehemently challenges the impugned order on the ground that the amendment petition had been filed after more than three years of the filing of the suit when the issues have already been framed and the suit has been posted for hearing and, hence, according to the amended provision of Order VI, Rule 17, of the Code of Civil Procedure, no amendment should have been allowed at this stage. The learned counsel for the petitioners further contends that after knowing the defence of the petitioners from their written statement, the plaintiff wants to create a new case regarding facts about which the plaintiff clearly had knowledge and information at the time of the filing of the suit, hence, allowing the said amendment would clearly cause prejudice to the defendants. The learned counsel for the petitioners also relies upon a decision of this Court in case of Radhika Devi V/s. Bajrangi Singh and Ors., reported in 1996 (2) BLJ (SC) 99, in which it was held that amendments are refused in exceptional cases when the amendment takes away the legal right which has already accrued to the other side. Hence, the learned counsel for the petitioners submits that the learned Court below should have refused the said amendment and accordingly the impugned order is illegal, arbitrary, and perverse. 4. On the other hand, the learned counsel for the opposite party submits that the suit was filed on 18.6.2001, whereafter written statement on behalf of Defendant No. 3 was filed on 7.1.2003 and written statement oh behalf of Defendant Nos. 1 and 2 was filed on 10.3.2003, he further claims that the amendment sought in paragraphs 6, 7 and 9 of the plaint are for clearly typographical errors and hence it was rightly allowed by the learned Court below. 1 and 2 was filed on 10.3.2003, he further claims that the amendment sought in paragraphs 6, 7 and 9 of the plaint are for clearly typographical errors and hence it was rightly allowed by the learned Court below. The learned counsel for the petitioners does not object to the said contention of the learned counsel for the opposite party, but the learned counsel for the opposite party objects to the amendment allowed in paragraphs 4, 5 and 8 as well as Schedule-I of the plaint. 5. So far the amendments in paragraphs 4 of the plaint is concerned, the learned counsel for the opposite party submits that it is only explanatory in nature as the fact has already been stated in the plaint. So far the amendment in paragraph 8 and Schedule-l of the plaint is concerned, the learned counsel for the opposite party claims that the boundary was given as per the old possession and the amendment was necessitated to show the present boundary and hence there was no material change. The learned counsel for the opposite party further submits that with regard to amendment sought in paragraph 5 of the plaint, he had no previous knowledge of the matter and as soon as he got the details of the existing facts, he thought it proper to bring the same on record as they were left out by mistake. Hence, according to him, the impugned order of the learned Court below is legal and proper. 6. After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that by the statements made in the plaint, no right has accrued to the defendants and hence if the amendment is allowed there is no question of any right being taken away from the defendants. In the aforesaid circumstances, the decision relied upon by the learned counsel for the petitioners is not applicable to the facts and circumstances of the case. Furthermore, the facts which have been brought on record by way of amendment, in my view, is necessary for determining the real question in issue and the learned Court below was justified in allowing the amendment for full, final and proper adjudication of the issues involved in the suit. 7. Furthermore, the facts which have been brought on record by way of amendment, in my view, is necessary for determining the real question in issue and the learned Court below was justified in allowing the amendment for full, final and proper adjudication of the issues involved in the suit. 7. It may also be pointed out that hearing of the suit has not yet started and hence it can not be presumed that the trial has begun. Thus, there is no question of any legal bar to the filling of the amendment petition. So far the delay in filing of the amendment petition is concerned, the plaintiff-opposite party has given the reasons for it in his amendment petition after considering which the learned Court below has allowed the said petition. The order of the learned Court below is also in accordance with the recent decision of the Hon ble Apex Court in case of Prem Bakshi and Ors. V/s. Dharam Dev and Ors., reported in 2002 (2) PLJR (SC) 187, and hence I do not find any illegality or jurisdictional error in the impugned order of the learned Court below and accordingly this civil revision is dismissed. However, the defendants-petitioners, if advised, may file their additional written statement which should be confined to the amended pleadings in the plaint.