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2012 DIGILAW 1526 (PAT)

Abdul Hafiz v. Babu Vishal Mahto

2012-11-05

AJAY KUMAR TRIPATHI

body2012
ORDER Annexure-1 is the order dated 7.10.2010 passed by the Court of Sub Judge II at Biharsharif in Title Suit No.28 of 1999. The court below has rejected an application filed on behalf of the plaintiffs- petitioners for an amendment which he was seeking under Order VI Rule 17 of the CPC. 2. Stand of the petitioners is that the order impugned is in teeth of various pronouncements made by the Hon’ble Supreme Court as enunciated in the case of Ragu Thilak D. John Vs. S. Rajappan & ors., reported in 2001 (1) Supreme 328 and in the case of Pankaja & Anr Vs. Yellappa (D) by Lrs. & ors., reported in 2004 (5) Supreme 772 . 3. This position is seriously contested on behalf of the defendants who are in support of the order under challenge on many a grounds including the correctness of the reasonings given by the trial court for rejecting the application for amendment. 4. Some aspects which are not in dispute are that initially the title suit in question was filed seeking a declaration that the three sale deeds which were executed were illegal, void and not binding upon the plaintiffs. The area of the three sale deeds added upto 25 decimals of land. The deeds could never been executed by the vendors as they never had right, title or interest. During the pendency of the suit since 1999 certain facts underwent change and this was the background under which the amendment was sought to be brought about. The change was that the boundaries so indicated earlier did not reflect the correct position and that the plaintiffs were divested or ousted from the property during the pendency of the suit. Therefore, additional prayers and relief for declaration of title, restoration of possession etc. was made. Since the Courts have always held that allowing an amendment is a rule and rejection thereof is a rarity since there should not be multiplicity of litigations, the trial court should have allowed the amendment, heard the parties and decided the issue as a bundle of facts. 5. Besides the question of law, the bona fide of the petitioners is seriously challenged on behalf of the respondents. It is their stand that they have been in possession of the land for more than 4 to 5 decades. 5. Besides the question of law, the bona fide of the petitioners is seriously challenged on behalf of the respondents. It is their stand that they have been in possession of the land for more than 4 to 5 decades. Soon after filing of the suit for annulment of the three deeds by the petitioners, a Pleader Commissioner was appointed at the instance of the petitioners, who made a visit to the disputed land and furnished a report, which did indicate that the defendants were very much in possession of the property for a long period of time. There was a common boundary wall over the lands with one tall gate. It was opened by the defendants on the visit by the Pleader Commissioner indicating the position of possession and a common boundary over the suit lands. The petitioners never took any interest after the above position emerged nor they contested the report as such and allowed the suit to linger without any pairvi for more than nine years. It is only when the Court took interest in the matter to expedite its disposal that a fanciful kind of amendment petition was filed therein, may be to cover up the various aspects which did not emerge in the original plaint based on the actual state of affairs when they were filed. 6. The Court does not have a quarrel with regard to the proposition and the principles which have been placed by learned counsel for the petitioners and the reliance placed by him on the two decisions of the Apex Court. But as we all know that principles of law are not an issue in dispute as such but applicability of those principles in the given set of facts is what is of importance and relevance in a judicial proceeding. 7. The Court has closely scrutinized the plaint, the amendment so sought, the so called report of the Pleader Commissioner, the conduct of the petitioners after filing of the suit and the stand or contention of the petitioners that no right, title or interest can accrue in favour of the defendants as the vendor had none. The primary issue raised in the plaint as above has to be decided before the petitioners can claim any right title or interest or a claim for restoration of possession, which is a separate cause of action, can be allowed to be raised. The primary issue raised in the plaint as above has to be decided before the petitioners can claim any right title or interest or a claim for restoration of possession, which is a separate cause of action, can be allowed to be raised. Surely allowing the amendment and the relief so prayed for does change the nature of the suit and that will create serious prejudice against the defendants which has been extensively taken note of by the trial court in the order impugned. 8. There is no co- relation between amendment and the relief which the petitioners were originally looking for and that too at such a belated stage of time. 9. The trial court was perfectly correct in rejecting such a mala fide amendment which sought to be brought in by the petitioners, which in the opinion of the Court, was rightly rejected. The writ has no merit. It is dismissed. ?