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2007 DIGILAW 81 (PAT)

Raghubansh Rai v. Supan Kumar

2007-01-11

CHANDRAMAULI KR.PRASAD

body2007
Judgment 1. I.A. No. 5475 of 2005 This application has been filed for condoning the delay in filing the revision application. 2. It has been stated that the Clerk of the Counsel had misplaced the file and when it was traced out the Civil Revision application was filed. Affidavit in support thereof has been filed by the Advocates Clerk himself. 3. Heard. 4. I am satisfied with the cause shown and accordingly I allow this application and condone the delay in filing the revision application. 5. This revision application is directed against the order dated 28.2.2005 passed by the Munsif III, Saran at Chapra in Title Suit No. 66 of 1997, whereby the application filed by the defendant Nos. 1 and 2- petitioners for amendment in the written statement described in paragraphs 11 and 13Ka of the application has been disallowed. 6. Short facts giving rise to the present application are that the plaintiff filed Title Suit No. 66 of 1997 for declaration that the sale deed executed by defendant No. 3 in favour of defendant no.1 is null and void. The trial Court by judgment and decree dated 22nd December, 1998 dismissed the suit. Aggrieved by the same plaintiff preferred Title Appeal No. 12 of 1999 and the 6th Additional District Judge, Saran at Chapra by judgment dated 30th April, 2004 set aside the judgment and decree of the trial Court and remitted the matter back for decision afresh. While doing so the appellate Court directed for decision on the question as to whether sale deed executed by defendant no. 3 in favour of defendant no.1 was for legal necessity of the family members or not. After the matter came on remand, defendant nos. i and 2 filed application praying several amendments in the written statement. The learned Munsif by the impugned order had partly allowed the application but rejected the prayer sought for in paragraphs 11 and 13Ka of the application. 7. Mr. Jha, learned Counsel for the petitioners submits that the amendment sought for were formal in nature and should not have been rejected on the ground that it was opposed by the plaintiff. He points out that in the written statement these defendants had stated that defendant no. 3 had executed the sale-deed and after the execution of the sale-deed they came in possession of the suit property. He points out that in the written statement these defendants had stated that defendant no. 3 had executed the sale-deed and after the execution of the sale-deed they came in possession of the suit property. He submits that by way of amendments they sought to elaborate the existing pleading by describing defendant no. 3 as Karta of the family and the names of the witnesses and coming in possession over the suit property as owner. 8. Mr. Jha, further states that even if the amendments are allowed, these defendants would not lead any evidence as evidence on these question has already been adduced. 9. Mr. Dwivedi, appearing on behalf of the plaintiff-Opposite party nos.1 to 3 however, contends that amendments sought for are not formal in nature and its purpose is to delay the conclusion of the trial. 10. Having appreciated the rival submission, I find substance! in the submission of Mr. Jha. I am of the opinion that the amendments sought for are formal in nature and ought to have been allowed by the learned Munsif. 11. The apprehension of Mr. Dwivedi that there shall be undue delay in disposal of the suit on account of amendment in the written statement is absolutely misconceived in view of the under taking given by the petitioners that no witness shall be examined on their behalf after the amendment is allowed. 12. As the matter is pending since long the learned Munsif in seisin of the trial shall make endeavour to dispose of the same within three months from the date of receipt/production of a copy of this order. 13. The District Judge, Saran at Chapra shall ensure compliance of this order. 14. In the result, the application is allowed, impugned order so far as it declines the amendment in written statement is set aside and the amendment sought for, is allowed. However, petitioners shall not be allowed to lead further evidence in view of the amendment. 15. No cost.