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2007 DIGILAW 1643 (PAT)

Domni Devi v. Neuri Kueri

2007-10-06

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard learned counsel for the parties. 2. The petitioner seeks setting aside of the order dated 29.3.2005 passed in Title Suit No.19 of 2001 by the Munsif-ll, Gaya, by which the amendment petition filed on behalf of the plaintiff-petitioner has been rejected. 3. The abovementioned suit was filed by the plaintiff-petitioner for declaring her right, title and interest over the lands in the suit as stated in Schedule-D after declaring the Khata of defendant no.1 as illegal and null and void. Earlier, the plaintiff-petitioner filed an amendment petition for the substitution of C.S.Khata No. 40 as C.S. Khata No. 146 in paragraph no. 6 of the plaint and Schedule B of the plaint, which amendment was allowed. Subsequently, the present amendment application was filed after as many as 7 witnesses on behalf of the plaintiff had been examined. In the said amendment petition 8 amendments had been sought. Some of the amendments related to substitution of C.S. No. 146 in place of wrongly mentioned C.S. Khata No. 40 or 44 in paragraph no. 2 as also with respect to the substitution of R.S.Khata No. 81 in paragraph No. 6 by the correct R.S.Khata No. 80. Some of the other amendments relate to change in the relationship of the person concerned. Amendment No. 7 was sought for adding the word "possession" after the word "interest" and after the word "Schedule-D" the word "plaint" was sought to be added in the relief portion of the plaint. 4. An objection was filed to the same by the defendants on the ground that a large number of witnesses have already been examined on behalf of the plaintiff and further the amendment will affect the nature of the suit and for adding the relief of possession, ad valorem court fee will have to be paid and the amendments sought will change Khata, Plot, relationship, boundary and the relief. It was the stand in the objection petition that at the belated stage, no such amendment can be permitted. 5. It was the stand in the objection petition that at the belated stage, no such amendment can be permitted. 5. On a consideration of the contentions of the parties, the court below came to the conclusion that allowing the amendment at such a belated stage merely on the ground that the earlier Advocate on behalf of the plaintiff had committed mistakes in drafting the plaint and on the change of the counsel the amendments have been sought are not permissible and for the said reasons, he rejected the amendment application by the impugned order dated 23.9.2005. Against the same, the plaintiff-petitioner has filed the present revision application. 6. Learned counsel for the petitioner submits that it is evident from perusal of the amendments sought, which have been mentioned in detail in the impugned order itself, that all the amendments are purely formal in nature except amendment no. 7 and will not effectively change the nature of the suit. In the said circumstances, it is contended that to make the written statement clear and unambiguous the court below ought to have allowed those amendments. It is further submitted that the plaintiff is an illiterate and rustic lady and had merely put her thumb impression on the plaint and was not aware of the impact of the plaint in which manner it has been provided. Learned counsel further submits that due to mistake of the previous Advocate some errors and omissions have crept in drafting of the plaint on account of which the present amendment, which is necessary for proper adjudication of the suit, has been prayed for. It is submitted that with respect to possession sufficient averments already existed in the plaint and the same ought to have formed part of the reliefs claimed in the suit but due to fault of the earlier Counsel it has not been done and for the same, the plaintiff-petitioner ought not to be penalised. 7. In support of the aforesaid stand, learned counsel for the petitioner relies upon a decision of this court in the case of Vishwanath Singh and Another V/s. Anand Kishore Singh and Another, 2007 3 PLJR 81 in which after considering the fact that the amendments sought by the plaintiff-petitioner of that case did not change the subject-matter or nature of the suit this Court had allowed the amendments. Learned counsel for the petitioner also relies upon a decision of the Supreme Court in the case of M/s Ganesh Trading Co. V/s. Moji Ram, AIR 1978 SC 484 , in paragraph nos. 4 and 5 of which it has been held as follows: "4. It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued." "5.....This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable, if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constituting a cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with......" 8. Learned counsel for the opposite parties, on the other hand, submits that the plaintiff has only sought the amendment for the purpose of delaying the decision so as to harass and cause inconvenience to the defendants. It is further submitted that earlier also an amendment petition had been filed and allowed and there was no reason to file the present amendment petition. It is submitted that the filing of the present amendment petition practically after the close of the plaintiffs case and after all his witnesses have been examined amounts to an abuse of the process of the Court. It is submitted that the filing of the present amendment petition practically after the close of the plaintiffs case and after all his witnesses have been examined amounts to an abuse of the process of the Court. Learned counsel also relies upon newly introduced provisions under Order 6 Rule 17 of the Code of Civil Procedure in which it has been laid down 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 the trial. 9. In support of the aforesaid stand, learned counsel for the opposite parties relies upon a decision of this court in the case of Shree Narayan and Anr. V/s. Mahendra Prasad Yadav and Others, 2006 2 PLJR 489 , in paragraph no. 3 of which it has been held as follows: "3. On the contrary in the amendment application, it has been specifically admitted that the filing of written statement was incomplete due to oversight and inadvertence. A rejoinder was filed by the plaintiffs objecting to the amendment on merits as well as on the ground that it was belated. I am not inclined to go into the question of merit but in view of newly introduced proviso to Order 6 Rule 17 C.P.C. the amendment could not have been allowed at this belated stage once trial has commenced without the Trial Judge noticing a case made out as per the proviso to the said rule. Moreover, there is no pleading to that effect. The learned Trial Judge erred and failed to exercise its jurisdiction and thereby committed a clear error in allowing the amendment application. The impugned order dated 19.3.2004 passed by the learned 6th Sub-Judge, Patna, in T.S. No. 492 of 1982 is set aside leaving the parties to lead such evidence as admissible in law in course of trial." 10. Learned counsel also relies on a decision of the Supreme Court in the case of Ajendraprasadji N. Pande and Anr. V/s. Swami Keshavprakeshdasji N. and Ors., 2007 0 AIR(SCW) 513, in paragraph no. 40 of which it is stated as follows: "40. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. V/s. Swami Keshavprakeshdasji N. and Ors., 2007 0 AIR(SCW) 513, in paragraph no. 40 of which it is stated as follows: "40. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order VI, Rule 17 was due to the recommendation of the Law Commission since Order 17 as it existed prior to the amendment was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the Amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the Country and also leading to boycott of Courts and, therefore, by Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognizing the power of the Court to grant amendment, however with certain limitation which is contained in the new proviso added to the Rule." 11. So far as the reliance placed by learned counsel for the opposite parties regarding proviso to Order 6 Rule 17 is concerned, the same does not totally bar the power of the Court to allow the amendment even after the trial has commenced, if it comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is further evident from the said proviso that the same obviously relates to amendments which purport to bring in facts which were already within the knowledge of the party and ought to have formed part of the original pleadings to the suit and with respect to such amendments sought, the proviso may have effect of barring the jurisdiction of the Court. The said proviso can have only limited or no application to the amendments sought which are purely formal in nature, that is to correct the Khata number and Plot number etc. particularly, in a matter like the present one where the plot number, Khata number, boundary etc. are sought to be changed and not its area. The said proviso can have only limited or no application to the amendments sought which are purely formal in nature, that is to correct the Khata number and Plot number etc. particularly, in a matter like the present one where the plot number, Khata number, boundary etc. are sought to be changed and not its area. It is also the duty of the Court to see that the record of the Court is maintained in a proper manner and the litigation is adjudicated upon on the basis of a correct description of the property in dispute. It is not the case of the opposite parties that the land in dispute is sought to be changed by the said description given in the amendment. Similarly, where the relationship of certain persons is sought to be corrected from wife to daughter etc. the same cannot be said to be an amendment which would be hit by the proviso of Order 6 Rule 17 of the Code. 12. So far as the addition of the relief regarding possession is concerned, it is evident from the averments made in the plaint itself at several places that the plaintiff had asserted her possession over the property in dispute. The addition of such relief is not a matter which takes the other side by surprise, and in order to avoid multiplicity of litigation, it would be in the interest of justice that the said issue is also considered by the Court below. 13. In my view so far as the amendment of Rule 17 of Order 6 is concerned, it is not meant to cover the amendment of pleadings of the present nature but of such substantial nature which intends to change the nature of the suit or the very basis of the suit. The same is not the position in the present matter since no new facts are sought to be introduced. 14. So far as the reliance placed in the case of Shree Narayan (supra) by learned counsel for the petitioner (Sic opposite party ?) is concerned, it is evident in the said matter that the amendment had been sought after 20 years of the commencement of the suit and that too without any explanation as to why the amendment was being sought. In the present matter sufficient explanation has come forward that the plaintiff is an illiterate and rustic lady, who had only put the thumb impression and thus the present case stands on a very different footing. 15. On a consideration of the entire facts and circumstances, this Court is of the view that the Court below ought to have allowed the amendment considering the nature of the amendments sought and the circumstances of the plaintiff and the other side couid have been easily compensated for the inconvenience and trouble involved in bringing the amendment at a belated stage. 16. The revision application is, accordingly, allowed. The order dated 23.9.2005 passed by the Munsif-ll, Gaya, in Title Suit No. 19 of 2001 is set aside and the amendment petition filed by the plaintiff petitioner is also allowed. It would be open to the defendants to file additional written statement with respect to the same and take all objections with respect to the amendment, particularly with respect to the addition of the reliefs. However, it is made clear that the plaintiff-petitioner must compensate the defendants for bringing a belated amendment by paying a sum of Rs. 3000/- within a period of two months from today.