Research › Search › Judgment

Patna High Court · body

2011 DIGILAW 2155 (PAT)

Sunil Kumar v. Shanti Devi

2011-10-17

MUNGESHWAR SAHOO

body2011
ORDER Heard the learned counsel, Mr. Bhupendra Narain Singh on behalf of the petitioner and the learned counsel, Mr. Sudhir Kumar appearing on behalf of the respondent no.1 only. In spite of service of notice, the other respondents have not put their appearance. 2. This application under Article 227 of the Constitution of India has been filed by the plaintiff-petitioner against the order dated 18.07.2008 passed by Sub Judge I, Biharsharif, Nalanda in title suit no.131 of 2000 whereby the learned Court below rejected the application filed by the plaintiff-petitioner for amendment of the plaint seeking for recovery of possession of the suit premises. 3. The learned counsel for the petitioner submitted that the plaintiff-petitioner filed the aforesaid title suit for declaration of title and thereafter filed the application for amendment in the plaint for adding a prayer for recovery of possession of the suit property. By the impugned order, the learned Court below rejected the said prayer on the ground that the proviso added to Order 6 Rule 17 of the C.P.C. has not been complied with by the petitioner, therefore, he is not entitled for the relief claimed in amendment in the plaint. According to the learned counsel the proviso has been added by reason of Section 12 Sub Section 2 clause b of the Amendment Act 22 of 2002 w.e.f. 1st of July, 2002 and, therefore, the said proviso will not be attracted in the suits which were instituted prior to 1st of July, 2002 but the learned Court below wrongly relied upon the said proviso. The learned counsel further submitted that on the ground of delay also, the amendment if it is necessary for just decision in the suit and for determination of the real questions in controversy between the parties, the Court should not have rejected the amendment application. 4. On the contrary, the learned counsel appearing on behalf of the respondents submitted that more than 12 items of amendment were sought for after the closure of the plaintiff’s evidence, therefore, the learned Court below has rightly rejected the amendment application on the ground of delay. 5. From perusal of the impugned order, it appears that the learned Court below considered the proviso to Order 6 Rule 17 C.P.C. and mainly on that ground, rejected the amendment application. In the case of State Bank of Hyderabad Vs. 5. From perusal of the impugned order, it appears that the learned Court below considered the proviso to Order 6 Rule 17 C.P.C. and mainly on that ground, rejected the amendment application. In the case of State Bank of Hyderabad Vs. Town Municipal Council reported in (2007)1 SCC 765 , the Hon’ble Apex Court has held that the proviso added to Order 6 Rule 17 of the C.P.C. by C.P.C. Amendment Act 22 of 2002 by reason of Section 12(2)(b) w.e.f. 01.07.2002 shall not apply to the suit which were instituted prior to 1st of July, 2002. The said proviso will apply only in the suits which were instituted after 1st of July, 2002. In the said decision, the amendment was allowed by the Lower Appellate Court by an order dated 07.04.2003 and the matter was remanded to the Court below. In the Second Appeal, the High Court dismissed the amendment application considering the proviso to Order 6 Rule 17 C.P.C. The Apex Court set aside the order of the High Court and held that the suit was filed prior to 1st of July, 2002, therefore, the proviso is not attracted. The Apex Court also held that all amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. 6. In (2007) 15 S.C.C. 52 (Jageshwari Devi Vs. Shatrughan Ram), the Apex Court held that the amendment for recovery of possession should be allowed in view of the defence taken in the written statement. Admittedly, in the present case at our hand, the defendant claimed title on himself and also possession. 7. In (2008) 8 S.C.C. 511 (North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (dead) by LRS.), the Apex Court at paragraph 16 held that Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. All amendments ought to be allowed which satisfy the two conditions i.e. of not working injustice to the other side and of being necessary for the purpose of determining the real questions in controversy between the parties. All amendments ought to be allowed which satisfy the two conditions i.e. of not working injustice to the other side and of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct but the amendment would cause him an injury which could not be compensated in costs. Therefore, this is the consistent view of the Apex Court. 8. It is also well settled principles of law as has been held by Apex Court in a case of Mr. Shaikh Haji Abdul Khayumsab Vs. Mr. Kumar & ors., 2006(1) P.L.J.R. 154 S.C. that the procedural provision is handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. The object is to expedite the hearing and not to scuttle the same. 9. In view of the above settled principles of law in my opinion, the learned Court below has wrongly refused to exercise a jurisdiction vested in it by law by considering the proviso which was not attracted in this case. Therefore, the impugned order is unsustainable in the eye of law. Accordingly, this writ application under Article 227 of the Constitution of India is allowed. The impugned order dated 18.07.2008 passed by Sub Judge I, Biharsharif, Nalanda in Title Suit No.131 of 2000 is set aside and the amendment application filed by the plaintiff is allowed. The respondent if so advised may file additional written statement to the extent amendment allowed only.