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2013 DIGILAW 1007 (PAT)

Sudha Agrawal v. Ritu Gupta @ Ritu Agrawal

2013-08-16

CHAKRADHARI SHARAN SINGH

body2013
ORAL ORDER The present application under Article 227 of the Constitution of India has been filed challenging the order dated 19.12.2012 passed by learned Sub Judge-5, Bhabhua, in Title Suit No. 25 of 2002, whereby the Court below has allowed a petition dated 26.9.2012 filed by the plaintiffs/respondents under Order VI Rule 17 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) for amendment in the plaint. 2. The suit for partition being Title Suit No. 25 of 2002 was filed by the respondents. The petitioners were impleaded as defendant Nos. 17A to 17 D. The case of the petitioners is that after nearly ten years of the institution of the suit and after closing of the evidence of the plaintiff, a petition dated 26.9.2012 was filed seeking various amendments in the plaint. 3. Learned Counsel appearing on behalf of the petitioners submits that while allowing the plaint to be amended by the impugned order, the whole foundation of the case is being changed. It has been submitted that by seeking amendment after ten years, particularly much after commencement of trial the plaintiffs are trying to add various properties in the plaint as joint family property including such property which were self acquired properties by the petitioners. Referring to the amendment petition, learned counsel for the petitioners has submitted that at such belated stage an application seeking amendment, which amounts to virtually changing the entire texture of the plaint should not have been allowed by the Court below. He further submits that the written statement was filed on the basis of assertions made in the plaint. The facts asserted in the plaint and not disputed in the written statement are such admissions which could not have been withdrawn by way of amendment. 4. Learned counsel appearing on behalf of the respondent first set, on the other hand, has submitted that the amendment which has been allowed to be made in the plaint would not prejudice the case of the petitioners as they would be having sufficient opportunity of rebuttal. He submits that the Court below has acted within its jurisdiction by allowing amendment in the plaint for the reasons mentioned in the impugned order and it does not require any interference by this Court in a proceeding under Article 227 of the Constitution of India. 5. He submits that the Court below has acted within its jurisdiction by allowing amendment in the plaint for the reasons mentioned in the impugned order and it does not require any interference by this Court in a proceeding under Article 227 of the Constitution of India. 5. I have perused the plaint of said Title Suit No. 25 of 2002 which is Annexure-1 of this application. Annexure-2 is the application filed by the plaintiffs/respondent under Order VI Rule 17 of the Code, seeking amendment in the plaint. From comparison of the two following facts emerge:- (1) By the first amendment petitioners seek to replace year of partition as mentioned in para 7 of the plaint ‘1962’ by ‘1985’. (2) By second amendment the plaintiff seeks to substitute ‘805’ in place of ‘380’ being area of the land in Hectares. (3) By third amendment the plaintiff wants to add various plots in Schedule ‘Ka’ of the plaint which contains the details of the joint family property. (4) In paragraph 12 of the plaint, the plaintiff has asserted that Kamlakant Agarwal was the karta of the branch of late Lakhi Prasad after partition from the branch of Baijnath Prasad Agarwal. By fourth amendment the plaintiff wanted to delete the said paragraph and substitute the fact that Baijnath Prasad Agarwal and Lakhi Prasad were joint and they were engaged in business jointly and Baiju Babu was the karta of the family after his death Uma Kant Agarwal became the karta of the family. (5) In paragraph 13 of the plaint it was asserted that Kamlakant Agarwal in his capacity as karta of the joint family obtained an Agency for Kerosene oil business and over which the branch of Lakhi Pd. Agarwal continued in possession. By fifth amendment the plaintiff wanted to introduce some fact according to which the branches of Lakhi Prasad and Baijnath Pd. Agarwal both had possession and control over the business of Kerosene oil Agency meaning thereby that both the branches were joint. 6. This is to be noted that the suit was filed in the year 2002. Subsequent thereto, a written statement was filed. There is absolutely no explanation in the application under Order VI Rule 17 of the Code filed by the plaintiff/respondent as contained in Annexure-2 as to why these amendments were being sought to be introduced, more than ten years after institution of the suit. Subsequent thereto, a written statement was filed. There is absolutely no explanation in the application under Order VI Rule 17 of the Code filed by the plaintiff/respondent as contained in Annexure-2 as to why these amendments were being sought to be introduced, more than ten years after institution of the suit. As has been submitted and not disputed, that trial also had commenced and the evidence of plaintiff was closed. At such stage filing of an application for amending the plaint puts a question mark on the bonafide of such application. This is more so, as it does not deal at all as to why such amendment was not sought to be introduced at earlier stage. A vague plea that the plaintiff being a junior family member in the family did not have the knowledge about these facts earlier is not acceptable by this Court. She had been pursuing the case for several years and produced evidence in her favour in course of trial. 7. In my opinion, nature of amendment sought as have been indicated hereinabove, amounts to changing substantially the original case and substituting altogether a different and new case. I am further of the view that the stage of the suit at which the plaintiff filed the application for amendment in the plaint coupled with the nature of the amendment sought is indicative of the fact that the application for amendment was not bonafide. 8. Learned counsel for the respondent has placed reliance upon a judgment of this Court reported in 2008 (2) PLJR 591 (Sushila Devi Vs. Sir Maur Singh) to contend that the Court below was right in allowing the plaint and the impugned order has been passed in exercise of due discretion available to the Court under Order VI Rule 17 of the Code. He submits that as it was felt necessary by the Court below effectually to adjudicate upon the issue to allow the amendment sought for, such order should not be interfered with in a proceeding under Article 227 of the Constitution of India. Said Judgment of this Court in case of Sushila Devi Vs. Sir Maur Singh (supra) has absolutely no application in the present facts and circumstances of the case, as the Court in that case was of the view that the amendment sought for was only explanatory in nature. Said Judgment of this Court in case of Sushila Devi Vs. Sir Maur Singh (supra) has absolutely no application in the present facts and circumstances of the case, as the Court in that case was of the view that the amendment sought for was only explanatory in nature. In the present case by amendment the plaintiff/respondent is trying to set up altogether a new case that too at the stage when the evidence of plaintiff is closed and the defendants are about to begin their evidence. 9. In view of the above, the impugned order dated 19.12.2012 passed by learned Sub-Judge-5th, Bhabhua in Title Suit No. 25 of 2002 cannot be sustained and is, accordingly, set aside. 10. The application is allowed.