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2011 DIGILAW 1618 (PAT)

Sanjay Kumar v. State of Bihar

2011-08-02

JYOTI SARAN

body2011
ORDER : With the consent of the parties the two writ petitions have been taken up together for consideration and disposal at the stage of admission itself, as the parties to the proceedings are common and the issue arises out of the same Title (Partition) Suit No. 49 of 2005. 2. Under the ORDER :dated 07.04.2011 passed in C.W.J.C. No. 5910 of 2010, the matter had been referred to the Patna High Court Mediation Committee with a view that the dispute could be resolved through the process of the Mediation. However, the parties to the proceedings failed to arrive at any settlement to the dispute leading to failure of the mediation process. The failure report has been forwarded by the learned Mediator Mr. Rajeev Roy through his report dated 26.7.2011 which is available on the records of the proceedings. It is thereafter that the matter has been taken up for consideration with a view to its final disposal. C.W.J.C. No. 6955 of 2011 3. Heard Mr. Manoj Kumar Sinha, learned counsel appearing on behalf of the petitioner and Mr. Mahesh Narayan Parbat, learned counsel appearing on behalf of the respondents. 4. The writ petition has been filed challenging the ORDER :dated 24.7.2009 passed by the learned Sub-Judge VIII, Patna in Title (Partition) Suit No. 49 of 2005 allowing the application filed by the defendant-respondent herein, under ORDER :6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as the Code) seeking amendment in paragraph 34 and 37 of the written statement. The suit in question had been filed by the plaintiff-petitioner for partition of the properties set out in schedule-1 of the plaint. The pleadings being complete the matter is posted for evidence by the plaintiff after the issues were framed on 5.3.2009. It is at the stage of the leading of the evidence by the plaintiff that the defendant-respondent herein filed an application under ORDER :6 Rule 17 of the Code of Civil Procedure for amendment in paragraph 34 and 37 of the written statement. 5. For the sake of convenience paragraph 34 and 37 of the written statement as it existed prior to amendment and would appear after amendment, is being reproduced hereinbelow: 6. Paragraph 34 before amendment read as follows- "That the statements made in paragraph 21 of the plaint are distortion of fact. This defendant no. 5. For the sake of convenience paragraph 34 and 37 of the written statement as it existed prior to amendment and would appear after amendment, is being reproduced hereinbelow: 6. Paragraph 34 before amendment read as follows- "That the statements made in paragraph 21 of the plaint are distortion of fact. This defendant no. 1 to keep peace in his old age has executed a document dated 14.8.2002 as desired by the plaintiff, although the N.S.C. was purchased by this defendant out of his self money and this defendant is not liable to pay the amount of N.S.C. to the plaintiff." 7. Paragraph 34 upon amendment would read as follows- "That the statement made in paragraph no. 21 of the plaint are distortion of fact. This defendant no. 1 to keep peace in his old age has executed a document dated 14.7.2004 as desired by the plaintiff, but has not executed the document dated 14.8.2002 which does not bear the signature of this document and is a forged document, although the N.S.C. was purchased by this defendant out of his self money and this defendant is not liable to pay the amount of N.S.C. to the plaintiff." 8. Similarly paragraph 37 prior to amendment read as follows:- "That the statement made in paragraph 24 of the plaint are wrong, incorrect and concocted. There is no valid agreement dated 14.7.2004 between the plaintiff and defendant no. 1. The agreement dated 17.4.2004, if any, is produced by the plaintiff, the same must be fraudulently fabricated document by the plaintiff and any such document cannot give any right to the plaintiff to get the self acquired land and self constructed house of this defendant partition and to be allotted to the plaintiff. The plaintiff has no legal right to have any flat in the house of this defendant." 9. The said paragraph after amendment would read as follows:- "That the statement made in paragraph no. 24 of the plaint are wrong, incorrect and concocted. There is no valid agreement dated 14.7.2004 between the plaintiff and defendant no. 1. The agreement dated 17.4.2004 was executed to maintain peace in the family and any such document cannot give any right to the plaintiff to get the self acquired land and self constructed house of this defendant partition and to be allotted to the plaintiff. There is no valid agreement dated 14.7.2004 between the plaintiff and defendant no. 1. The agreement dated 17.4.2004 was executed to maintain peace in the family and any such document cannot give any right to the plaintiff to get the self acquired land and self constructed house of this defendant partition and to be allotted to the plaintiff. The plaintiff has no legal right to have any flat in the house of this defendant." 10. The amendment sought by the petitioner having been allowed under the impugned ORDER :dated 24.7.2009 by the learned court below, hence the present writ petition. 11. Learned counsel for the petitioner submits that the amendment sought by the petitioner ought not to have been allowed inasmuch as it amounts to withdrawal of the admission made by the defendant-respondent and completely alters his stand before the court below. He submits that although the suit was filed in the year 2005 and an injunction petition was allowed on 18.5.2005 taking note of the agreements dated 14.8.2002 and 14.7.2004, no objection was raised as regarding the said agreements until such stage. It is stated that the defendant-respondent even went in appeal challenging the ORDER :of maintenance of status-quo passed by the learned court below on 18.5.2005 giving rise to M.A. No. 292 of 2005 but did not choose to question this aspect of the matter. It is contended that the amendment sought is an afterthought being raised belatedly at a stage when the suit has already been put to trial. 12. Learned counsel relying upon the amendments introduced in the Code in 2002, submits that the amended provisions of ORDER :6 Rule 17 very clearly stipulates that unless the amendment sought, could not with due diligence, been within the knowledge of the concerned party at the stage of filing of their respective pleadings, it should not be allowed in normal course after the suit is put on trial. Learned counsel submits that the defendant-respondent having sat over the matter for almost three years chose to prefer the amendment petition only on 20.10.2008 without any explanation as to the delay. Learned counsel in support of his contention relied upon the following JUDGMENT :s of the Supreme Court:- (i) 2008(5) SCC 117 (Chandrakanta Bansal Vs. Rajendra Singh Anand); paragraph 11 and 16. (ii) 2009(2) SCC 409 (Vidya Bai and Ors. Vs. Padma Latha and Anr.); paragraph 10 to 12. 13. Learned counsel in support of his contention relied upon the following JUDGMENT :s of the Supreme Court:- (i) 2008(5) SCC 117 (Chandrakanta Bansal Vs. Rajendra Singh Anand); paragraph 11 and 16. (ii) 2009(2) SCC 409 (Vidya Bai and Ors. Vs. Padma Latha and Anr.); paragraph 10 to 12. 13. Learned counsel submits that in view of the judicial pronouncement and the stipulations provided under the amendment introduced to the provisions of ORDER :6 Rule 17 of the Code, the amendment should not have been allowed as it does not only amounts to changing of the defence taken by the defendant but is also in the teeth of the amended provisions of ORDER :6 Rule 17 of the Code. 14. Mr. Mahesh Narayan Parbat, learned counsel appearing for the defendant-respondent herein submits that the Supreme Court in catena of JUDGMENT :s have held that amendments to plaint and written statement should be liberally construed and in normal circumstances should not be disallowed. He submits that a plain reading of the amendments sought by the defendant-respondent herein shows that they were clarificatory in nature. Learned counsel denied the averment of the petitioner that the amendment in any manner altered the stand/defence taken by the defendants in their written statement and that it amounts to withdrawal of admission. 15. Learned counsel in support of his contention relied upon the following JUDGMENT :s of the Supreme Court:- (i) A.I.R. 1983 462 (Panchdeo Narain Shrivastava Vs. Jyoti Sahai); paragraph 2 and 3. (ii) A.I.R. 1995 SC 1498 (Akshay Restaurant Vs. P. Anjanappa); paragraph 2 and 3, and (iii) A.I.R. 2002 page 559 (Prem Baxi Vs. Dharmdeo); paragraph 6 and 7. 16. Learned counsel submits that as there was certain confusion as regarding the agreements dated 14.8.2002 and 14.7.2004, hence the defendant-respondent wanted to merely clarify the position by way of amendment which did not result in any alteration of stand rather was merely explanatory. 17. I have heard learned counsel appearing on behalf of the parties and have perused the material available on record. There is no gainsaying that in normal course amendments brought on behalf of either of the parties to a suit should normally not be refused unless it alters the very nature of the suit and/or is pre-judicial and detrimental to the interest of the contesting party. There is no gainsaying that in normal course amendments brought on behalf of either of the parties to a suit should normally not be refused unless it alters the very nature of the suit and/or is pre-judicial and detrimental to the interest of the contesting party. The provisions of ORDER :6 Rule 17 prior to its amendment in the year 2002 under the Code of Civil Procedure Amendment Act, 2002 (Act 22 of 2002) brought in force with 1.7.2002, conferred powers on the Court to allow parties to amend their respective pleadings at any stage of proceeding in the interest of determination of the controversy involved. This position, however, underwent a serious change under the Amendment of 2002, whereafter a rider was put in the provision disallowing any such amendment once the trial had commenced unless the Court concerned was satisfied that the party concerned could not have foreseen the amendment sought at the stage of submission of the pleadings. 18. The JUDGMENT :s relied upon by the learned counsel for the petitioner is very explicit on the issue, that the proviso to ORDER :6 Rule 17, has been couched in a mandatory form and that once the trial has started, the jurisdiction of the Court to allow application seeking amendment, is taken away unless the conditions precedent thereto stands satisfied and for which the Court has to come to a conclusion that despite due diligence the parties could not have raised the matter before the commencement of the trial. 19. Insofar as the case in hand is concerned, a plain reading of the statements made in paragraph 34 and 37 of the written statement in its amended form shows that the defendant-respondent in fact is quite confused as to what he actually intends to say. Whereas in paragraph 34 of the written statement he relies on the document dated 14.7.2004 and criticizes the document dated 14.8.2002 but in paragraph 37 of the written statement even while he denies the very existence of valid agreement dated 14.7.2004 in the first part of the amended portion but thereafter it is stated that the agreement in question was executed to maintain peace in the family. The date of agreement again appears to be incorrectly mentioned as 17.4.2004 in place of 14.7.2004. The date of agreement again appears to be incorrectly mentioned as 17.4.2004 in place of 14.7.2004. The statements made in paragraph 34 and 37, after the amendment, apparently shows a shift from the original stand of the defendant. It is also not in the nature which would fall within the exceptional category of the proviso to ORDER :6 Rule 17 of the Code, that the position was not within the knowledge of the defendant at the time of filing of the written statement. Thus the petition seeking amendment filed by the defendant-respondent besides being belated is also hit by the proviso to ORDER :6 Rule 17 of the Code. Even on merits there is a definite withdrawal of admission by the defendant-respondent resulting in alteration of the stand taken in its original form. 20. That being the position, the impugned ORDER :dated 24.7.2009 passed by the learned Sub-judge VIII, Patna in Title (Partition) Suit No. 49 of 2005 cannot be upheld and is accordingly set aside. The writ petition is allowed. C.W.J.C. No. 5910 of 2010 21. Heard Mr. Braj Nandan Tiwary, learned counsel appearing on behalf of the petitioner and Mr. Mahesh Narayan Parbat, learned counsel appearing for the respondents herein. 22. The writ petition has been filed questioning the ORDER :dated 19.3.2010 passed by the learned Subordinate Judge VIII, Patna passed in Title (Partition) Suit No. 49 of 2005, whereby the evidence of the plaintiff-petitioner has been closed. 23. Learned counsel for the petitioner submits that even while the Civil Revision filed against the ORDER :dated 24.7.2009 allowing the amendment preferred by the defendant-respondent filed under ORDER :6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as 'the Code') was pending consideration before the High Court and about which due information had been given to the court below, the trial court proceeded to pass the impugned ORDER :closing the evidence of the petitioner vide its ORDER :dated 19.3.2010, hence the present writ petition. 24. Learned counsel submits that the said Civil Revision bearing C.R. No. 1397 of 2009 was subsequently converted into a writ petition vide ORDER :dated 18.3.2009 giving rise to C.W.J.C. No. 6955 of 2011 and which has also been heard today. 24. Learned counsel submits that the said Civil Revision bearing C.R. No. 1397 of 2009 was subsequently converted into a writ petition vide ORDER :dated 18.3.2009 giving rise to C.W.J.C. No. 6955 of 2011 and which has also been heard today. Learned counsel submits that the closure of the evidence of the plaintiff-petitioner by the trial court has caused serious prejudice to the plaintiff-petitioner and would adversely affect their interest in the suit. Learned counsel submits that if the impugned ORDER :is allowed to prevail, it would cause irreparable loss to the plaintiff-petitioner. 25. Mr. Mahesh Narayan Parbat, learned counsel for the defendant-respondent herein opposes the prayer of the petitioner and supports the impugned ORDER :. 26. Having heard learned counsel for the petitioner and the respondents, this Court is of the opinion that although undoubtedly the proceeding has been unnecessarily delayed by the plaintiff-petitioner by seeking undue adjournments, however, by way of extraordinary indulgence, this Court, in the interest of justice, would give one more opportunity to the plaintiff-petitioner to complete his evidence within a maximum period of one month from the date of receipt/production of a copy of this ORDER :before the trial court. 27. In the result, the impugned ORDER :dated 19.3.2010 passed in Title (Partition) Suit No. 49 of 2005 is quashed and set aside. The writ petition is allowed. The trial court would permit the petitioner to lead his evidence on day to day basis. 28. It is made clear that if the plaintiff-petitioner fails to lead and conclude his evidence within a maximum period of one month from the date of receipt/production of a copy of this ORDER :, the trial court would be well within its jurisdiction to close the evidence of the plaintiff-petitioner. 29. The interim ORDER :passed on 17.5.2010 stands vacated.