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2008 DIGILAW 1707 (PAT)

Munni Singh v. Kunta Devi

2008-11-28

MIHIR KUMAR JHA

body2008
JUDGEMENT 1. Heard counsel for the petitioners and the counsel for the opposite parties. 2. In the opinion of this Court the impugned order rejecting amendment in the plaint, confined to only addition of relief in the plaint, on a construction of statute in question, namely, Bihar Privileged Persons Homestead Tenancy Act, could not have been rejected. 3. The bar created for maintaining a suit against an order or proceeding under the Bihar Privileged Persons Homestead Tenancy Act is itself qualified and limited in terms of Section 18 thereof which is reproduced hereinbelow: "18. Order under this Act to be final.The orders passed under this Act shall be final. Subject to the provisions of Section 21, all orders passed by the Collector in any proceeding under this Act shall be final, and no suit shall lie in any civil court to vary or set aside any such order except on the ground of fraud or want of jurisdiction." 4. From the very wordings of the aforementioned Section 18 of the Act, it would be clear that a suit would lie in any civil court to vary or set aside any order under the Act if the same is challenged on the ground of fraud or want of jurisdiction. In the present case the plaintiff in paragraphs 10 to 13 has made detailed pleading with regard to the proceedings under the Act and in that context having set out the facts in paragraph 10 that the defendant was not a privileged person as defined under the Act since he was having more than one acre of land he made the following averments in paragraph 13: LOCAL LANGUANGE 5. It would, therefore, be clear that the order passed under the Act for which additional relief is sought to be added by way of amendment in the plaint has been assailed also on the ground of fraud. Once this part of pleading is available in the plaint, consequential relief being sought by way of amendment could not have been refused at least on the ground of want of jurisdiction under the Act. 6. Once this part of pleading is available in the plaint, consequential relief being sought by way of amendment could not have been refused at least on the ground of want of jurisdiction under the Act. 6. Learned counsel for the opposite parties, however, would submit that the order in question was passed in the year 1977 and was well within the knowledge of the plaintiff petitioners, inasmuch as a khata was opened in the consolidation proceeding in the name of defendant-opposite parties way back in the year 1981. He would, therefore, submit that the relief which has been sought to be added by way of amendment would be barred by limitation. 7. In the opinion of this Court whether the relief will be admissible or not and whether the same was barred by law of limitation or any other law except the bar of maintainability of the suit, itself has to be decided in a consolidated manner at the time of disposal of the suit and at least on that ground no amendment in the plaint can be refused. 8. Counsel for the petitioners at this stage assures this Court that for the additional relief which has been sought by way of amendment the plaintiff-petitioners do not require to lead any further evidence and in fact they will not place anything on record except whatever has already been brought over there by way of earlier amendment. In that view of the matter, the question of prejudice also to the defendant opposite party at least on the ground of delay in the amendment is ruled out. 9. This Court, however, would not be unmindful that such belated amendment came to be filed only at the stage of argument and therefore, when the defendant opposite party has been coerced to contest the proceeding for a longer period of time, as also had to appear before this Court, the plaintiff-petitioners must be held to be liable to compensate the defendant-opposite party and accordingly, this Court while allowing this civil revision application by setting aside the impugned order and directing the Court below to incorporate the amendment as prayed for by the plaintiff-petitioners would also hold that the plaintiff-petitioners are liable to pay a cost of Rs. 5,000/- to petitioners to the defendant-opposite party which would be a condition precedent for such amendment in the plaint and must be paid by the plaintiff-petitioners to the defendant opposite parties within a period of one month from the date of receipt/production of a copy of this order. 10. With the aforementioned observations and directions this Civil Revision application is allowed.