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2013 DIGILAW 124 (PAT)

Narabdeshwar Choubey v. Bhola Choubey

2013-01-28

SHEEMA ALI KHAN

body2013
ORAL ORDER 1. Heard learned counsel for the petitioner and learned counsel appearing on behalf of the respondents. 2. The petitioner who is the defendant has challenged the order 12.8.2010 passed in Title Appeal No.353/2000, by which the appellate court has allowed the amendment petition of the petitioner in a partition suit. 3. An amendment petition had been filed on behalf of the respondent-plaintiff praying therein that he may be permitted to add certain lands which are part of the joint family property but which could not be mentioned in the plaint. The court has considered the fact that these lands which are mentioned in Ext.1 filed on behalf of the petitioner which is the R.S.Khatian indicating that the lands were settled jointly in the name of both the parties. Counsel appearing on behalf of the petitioner submits that the amendment has been made after delay and the plaintiff-appellant has not been able to explain the reason for filing this amendment at the appellate stage. 4. Counsel for the respondents on the other hand submits that some of the plots had already been mentioned in the plaint but the corresponding particulars had not been given, whereas some plots had been added after the plaintiff made an enquiry regarding certain sale deed executed by the defendant. 5. Counsel for the petitioner refers to the judgment of the Supreme Court in the case of J Samuel vs. Gattu Mahesh [2012 (2) BBCJ 164], wherein the court has dismissed the amendment sought on the ground that the due diligence has not been shown by the parties. The suit was for specific performance of contract. The matter came up in appeal against the final judgment. While considering the final judgment, the question arose as to whether the pleadings could be amended in a suit for specific performance of contract. Ready and willingness to perform the contract is an essential part of pleadings in a suit for specific performance. Therefore, the Supreme Court has held that such amendment cannot be permitted. Thus the case referred to is not applicable in the facts and circumstances of the present case. 6. Ready and willingness to perform the contract is an essential part of pleadings in a suit for specific performance. Therefore, the Supreme Court has held that such amendment cannot be permitted. Thus the case referred to is not applicable in the facts and circumstances of the present case. 6. Counsel for the respondents refers to the judgment of a learned Single Judge of this Court in the case of Sheo Pujan Rai vs. Ram Ekbal Rai, reported in AIR 2008 PATNA 50, wherein the court has held that if a plaintiff seeks to add properties which are joint ancestral property and are covered under same set of facts already decided at time of passing preliminary decree, it would neither change nature of suit nor it would take other side by surprise. In order to avoid multiplicity of the suit, this Court finds that the trial court has rightly allowed the plaint to be amended at the appellate stage. I may state here that the defendant-petitioner should be given an opportunity of rebuttal, if the court thinks it fit and proper. 7. This writ application is allowed with a rider that the defendant-respondent should be given an opportunity of rebuttal. 8. The writ petition is dismissed.