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2008 DIGILAW 432 (PAT)

Shri Shankar Bhagwan v. State Of Bihar

2008-02-28

S.N.HUSSAIN

body2008
Judgment 1. I.A. No. 13 of 2008 has been filed by the petitioners for expunging the name of Opposite Party No. 6 Md. Tauhid from the record of this case as he had died on 5.3.2002 much before the filing of this civil revision. The said Opposite Party No. 6 was a defendant in Title Suit No. 44 of 1988, out of which this civil revision has arisen, but he had neither filed his written statement, nor was contesting the suit. In the said circumstances, the said interlocutory application is allowed. Let the name of Opposite Party No. 6 be expunged. 2. This civil revision has been filed by the plaintiffs challenging order dated 20.10.2006 by which the learned Subordinate Judge 9, Gopalganj, dismissed their petition for amendment of plaint in Title Suit No. 44 of 1998. 3. The aforesaid suit was filed by the petitioners for declaration that the suit properties described in Schedule I of the plaint belonged to Plaintiffs 1st and 2nd Parties under the Hindu Religious Trust and also that the defendants had no right to dispossess the plaintiffs from the suit land and for other ancillary reliefs. The said suit was contested by defendants no. 1, 3 and 6, out of whom defendant no. 3 has died, whereas defendant nos. 1 and 6 are Opposite Parties No. 1 and 5 in the instant civil revision who filed their written statement and contested the suit. After the pleading was complete, issues were framed by the learned court below and evidence was led on behalf of both the parties and were closed, whereafter the suit was fixed for arguments. At that time the plaintiffs-petitioners filed a petition dated 31.7.2006 (Annexure-2) under the provision of Order VI Rule 17 of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity) for the following amendments in the plaint: (i) In para no. 19 of this plaint, the following sentences be added in the 7th line of the said paragraph: "From the above facts, it is crystal clear that the plaintiffs have acquired easementary right by being in possession since more than several 12 years." (ii) That in paragraph no. 1 of the relief, the following line be added: "It also be declared that the plaintiffs have acquired easementary right in the disputed land." 4. Defendant Nos. 1 of the relief, the following line be added: "It also be declared that the plaintiffs have acquired easementary right in the disputed land." 4. Defendant Nos. 3 and 6 opposed the said petition for amendment of the plaint, whereafter the said petition was dismissed by the learned court below by the impugned order dated 20.10.2006 against which the instant civil revision has been filed by the plaintiffs-petitioners. However, during the pendency of this civil revision further proceeding of the aforesaid title suit was stayed by this court vide order dated 5.4.2007. 5. Now two points arise for consideration in the instant case, namely (i) as to whether the provision of Order VI Rule 17 of the Code as amended would be applicable to the aforesaid suit which was filed much before the said amendment came into force, and (ii) as to whether the plaintiffs having claimed the relief of declaration of title in the plaint can be legally allowed to add by way of amendment a relief of declaration of easementary right over the suit land which is in complete contradiction to the original relief of declaration of title. 6. So far first point is concerned, the original provision of Order VI Rule 17 of the Code read as follows: "The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." 7. The said provision of the Code was amended by the Code of Civil Procedure (Amendment) Act, 2002 (XXII of 2002) which was brought into force from 1st July, 2002 vide Government Notification No. S.O. 604(E), dated 6th June, 2002 and which read as follows: "Order VI Rule 17. The said provision of the Code was amended by the Code of Civil Procedure (Amendment) Act, 2002 (XXII of 2002) which was brought into force from 1st July, 2002 vide Government Notification No. S.O. 604(E), dated 6th June, 2002 and which read as follows: "Order VI Rule 17. Amendment of pleadings.The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided 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 com-mencement of trial." 8. However, Section 16 of the above mentioned Amending Act provides repeal and savings, sub-section 2 of which reads as follows: "Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897, (a) the provisions of Section 102 of the principal Act as substituted by Section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of Section 5; and every such appeal shall be disposed of as if Section 5 had not come into force; (b) the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;" 9. From the aforesaid provisions of law it is quite apparent that the Legislature had clearly meant that generality provided in Section 6 of the General Clauses Act, 1897 with respect to effect of repeal was not affected by the Amending Act and that the provision of Rules 17 and 18 of Order VI of the Code as substituted by the Amending Act of 2002 shall not apply to the cases filed prior to the commencement of the Amending Act. In the instant case admittedly suit was filed in the year 1988, whereas the aforesaid Amending Act came into force on 1.7.2002. hence the amended provision of the Code with respect to amendment of the pleadings would not be applicable to the instant suit and any amendment sought to be made in the pleadings of that suit would be governed by the provision of Order VI Rule 17 of the Code which was in force prior to the coming into force of the Amending Act and thus for allowing amendment after commencement of the trial, the court is not required to come to any conclusion that in spite of due diligence the party could not raise the matter before commencement of trial in the suit and amendment of pleading can be allowed at any stage of the proceeding of the suit provided it is just and is necessary for deter mining the real question in controversy between the parties. 10. So far the second point is concerned, no doubt as per the original provision of Order VI Rule 17 applicable to this suit for preventing multiplicity of suit and proceeding and for complete adjudication of the matter, the amendment can be allowed at any stage of the suit, but in the instant case the matter is a bit different as the original suit was filed for declaration of title, whereas the reliefs sought to be added by way of amendment was for declaration of easementary right which is in complete negation to the earlier relief. because an easementary right can be claimed only when the plaintiff claiming that right admits that he had no title over the suit property and that the title of the suit properties lies with the defendant against whom the right of easement was claimed. because an easementary right can be claimed only when the plaintiff claiming that right admits that he had no title over the suit property and that the title of the suit properties lies with the defendant against whom the right of easement was claimed. Hence, not only the two reliefs negate each other, but the facts and the evidence also for the said reliefs would be at variance to each other and the court would not be able to decide the real question in controversy between the parties. In these circumstances, filing of an amendment petition for adding a reiief of declaration of easementary right after the evidence was closed is clearly not just, rather it is mala fide meant to prejudice the defendants and to confuse the court with regard to the real question in controversy. Reference in this regard may be made to a decision of this court in case of Ram Kumar Poddar & Ors. vs. Shiv Narain Sao & Ors., reported in 2005(3) PUR 478. However the plaintiffs-petitioners may file a suit claiming right of easement alter the instant suit for declaration of his title is decided against him. 11. In the aforesaid facts and circumstances, the amendment petition had been rightly rejected by the learned court below and I do not find any illegality or jurisdictional error in its impugned order while deciding the second point mentioned above. 12. Accordingly, this civil revision is dismissed.