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2005 DIGILAW 748 (PAT)

Shatrughan Prasad Singh v. Jang Bahadur Singh

2005-08-19

S.N.HUSSAIN

body2005
Judgment 1. Heard learned counsel for the parties. 2. Petitioners are Defendant Second Party in Title Suit No. 52 of 1997 which was filed by Opposite Party First set for declaration of title over the suit lands and also for declaration that the defendants had no concern with the suit lands as also for permanent injunction etc. 3. Petitioners are aggrieved by order dated 9.9.2004 passed in the aforesaid suit by which learned Subordinate Judge-l, Saharsa, rejected their petition under Order VI Rule 17 of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity) for amendment of their written statement. 4. Learned counsel for the petitioners submits that Petitioner No. 1 is the father of Petitioner No. 2 and was looking after the case on their behalf and had stated all the facts whereafter the written statement was prepared and filed but being an illiterate old man he could not see the contents thereof. But when the written statement was read over and explained to him at the time when he was going to produce his witnesses he found that certain facts could not be mentioned in the written statement and hence he filed the said amendment petition by which six new paragraphs are sought to be added. Learned counsel for the petitioners further submits that this aspect of the matter was not considered by the learned court below and hence the impugned order is illegal, arbitrary and perverse. 5. On the other hand, the learned counsel for the Opposite Parties submits that the suit was filed eight years back in the year 1997 and long back the evidence of the plaintiffs had been closed after plaintiffs witnesses having been cross-exam-led at length by the defendants-petitioners. He further, submits that the defendants-petitioners had throughout tried to delay be disposal of the suit and filing of the imendment petition at this stage is also an effort to delay disposal of the suit and to harass the plaintiffs. Learned counsel for the opposite parties also states that the amendment sought are for adding six lengthy paragraphs bringing complete new facts amounting to overhauling of the en- tire written statement which cannot be le- gally allowed at this stage. Hence, he submits that there is no requirement of any interference in the impugned order. 6. Learned counsel for the opposite parties also states that the amendment sought are for adding six lengthy paragraphs bringing complete new facts amounting to overhauling of the en- tire written statement which cannot be le- gally allowed at this stage. Hence, he submits that there is no requirement of any interference in the impugned order. 6. After hearing learned counsel for the parties and after perusing the materials on record, it is quite apparent that the evidence of the plaintiffs have been closed and at this stage the petition for amendment in the written statement has been filed by the defendants-petitioners. But the amended provision of Order VI Rule 17 of the Code provides that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. 7. Here, in the instant case Petitioner No. 1 is an illiterate person and claims that due to his illiteracy he could not see the written statement earlier and subsequently after the evidence of the plaintiffs was closed when he was to get his witnesses deposed, the contents of the written statement was read over and explained to him and at that stage he found that some facts necessary for proper adjudication of the suit were left out in spite of his due diligence. It also appears from the records of the case that after the said event, son of Plaintiff No. 1 started looking after the case on behalf of the defendants-petitioners. In the said circumstances, the defendants-petitioners have been able to show that in spite of due diligence they could not raise the matter before the commencement of the trial. 8. Furthermore, Honble Apex Court in case of Prem Bakshi & Ors. vs. Dharam Dev and Ors., reported in 2002(2) PLJR (SC) 187, specifically held that it cannot 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. A similar view has also been taken by this Court in case of Nand Kishore Sharma vs. Lal Babu Sharma and Ors., reported in 2004(4) PLJR, 214. 9. In the said circumstances, the impugned order is set aside and the learned court below is directed to permit the defendants-petitioners to amend the written statement accordingly, but this order will be subject to payment of cost of Rs. 4,000/- (Four thousand) by the defendants-petitioners to the plaintiffs-opposite parties through their counsel Sri Yasraj Bardhan within one month from today, because due to the delay in amending the written statement, opposite parties had to suffer monetary loss. It goes without saying that the learned court below will also give a chance of rebuttal to the plaintiffs in their pleadings as well as in their evidence with respect to the amended pleadings of the written statement. 10. With the aforesaid directions, this Civil Revision is allowed.