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2007 DIGILAW 1579 (PAT)

Ledar Sah v. Nathuni Sah

2007-09-26

RAMESH KUMAR DATTA

body2007
Judgment 1. I.A. No. 1445 of 2007 has been filed for condoning the delay of 12 days in filing the revision application. 2. After hearing learned counsel for the parties, this Court is of the view that sufficient grounds are made out for condoning the delay. The delay in filing the revision application is accordingly condoned. 3. I.A. No. 1445 of 2007 is accordingly allowed. 4. Heard learned counsel for the parties. 5. The petitioner is aggrieved by the order dated 22.11.2006 passed in P.S No. 166/2005 by Sub Judge-1, Bettiah by which the amendment petition filed by the plaintiff- petitioners on 23.6.2006 for adding certain lands in the suit property has been rejected. 6. The plaintiff-petitioners have filed the said partition suit with respect to certain lands mentioned in schedules 2 and 3 of the plaint. The defendant-opposite parties appeared in the said case and filed a written statement opposing the prayer of the plaintiffs on various grounds. The admitted position is that no issue has been framed till now in the said matter. 7. Subsequently, the plaintiff-petitioners filed the application under Order 6, Rule 17 of the Code of Civil Procedure for amendment of the plaint on 23.6.2006 praying to add certain lands in the suit property for the purpose of partition. A rejoinder was filed by the defendant nos. 1 to 4 against the said amendment petition stating that the said properties had earlier been allotted to their ancestors in an earlier partition suit in the family and subsequently they have sold them to other persons and thus they cannot form part of the present partition suit. 8. After hearing the parties, the court below rejected the application "on the sole ground that documentary proof has not been brought on the record by the plaintiffs for the purpose of the said amendment. 9. Learned counsel for the petitioner submits that the Court could not have looked into the evidence or defence of the other side at the present stage as the matter only related to the allowing or disallowing the amendment on the ground whether it was germane to the facts raised in the suit or not. Since the matter related to partition suit it was open to the plaintiffs to have sought amendments by including additional lands in the schedules to the plaint for the purpose of partition. Since the matter related to partition suit it was open to the plaintiffs to have sought amendments by including additional lands in the schedules to the plaint for the purpose of partition. It is submitted that at that stage the Court should not have asked for documentary evidence in support of the said amendment as those would be required to be produced during the trial of the suit. It is furher submitted that the trial of the suit cannot be said to have commenced since even the issues have not yet been framed. 10. In support of the aforesaid stand learned counsel relies upon a decision of the Supreme Court in the case of Rajesh Kumar Aggarwal and Others vs. K.K. Modi and Others: (2006)4 SCC 385 , in paragraph no. 18 of which it has been laid down as follows: "In our view since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the naure of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit." 11. Learned counsel for the opposite parties, on the other hand, submits that since the properties have gone out of hands of the family and belong to third party, hence the court below has rightly not permitted the same to be included by way of amendment that too without impleading the present owners of the said properties. 12. This Court is of the view that these are not facts which have any relevance so far as the question of allowing or disallowing amendment is concerned. As pointed out in the aforesaid decision of the Supreme Court, it is the real controversy test which is the basic or cardinal test and the Court has to consider whether such an amendment is necessary and it relates to real dispute between the parties which is necessary to be decided. As pointed out in the aforesaid decision of the Supreme Court, it is the real controversy test which is the basic or cardinal test and the Court has to consider whether such an amendment is necessary and it relates to real dispute between the parties which is necessary to be decided. It is clear from the plea raised on behalf of the defendants that the amendment is a matter which will have to be decided on the basis of evidence led by the parties as to whether the land in question sought to be included by way of amendment is continuing to be part of the family property or not. The same cannot be decided at the outset on the basis of any document to be filed alongwith the application for amendment. It is settled law that amendments should be allowed which are necessary for full and complete justice between the parties before the Court. 13. In view of the aforesaid discussions the revision application is allowed. The order dated 22.11.2006 passed by the court below is set aside and accordingly the amendment application filed on behalf of the plaintiffs is also allowed.