Research › Search › Judgment

Jharkhand High Court · body

2013 DIGILAW 371 (JHR)

Lakhi Singh v. Chuto Singh

2013-03-14

P.P.BHATT

body2013
JUDGMENT The petitioners, by way of filing the instant writ petition under Article 227 of the Constitution of India, has prayed for quashing and setting aside order dated 2.7.12 passed by Civil Judge, Sr. Division-IV, Dumka in Title Suit No. 76/2004, whereby the court below rejected the application filed under Order VI Rule 17 read with Section 151 C.P.C. seeking amendment in the plaint. 2. Heard the learned counsel for the parties and perused the impugned order as well as materials placed on record. 3. Learned counsel Mr. Ashish Verma appearing on behalf of the petitioners vehemently submitted that the court below has not properly appreciated the provision as contained in Order VI, Rule 17 of the Code of Civil Procedure and rejected the request made in the amendment petition. It is further submitted that in view of the settled proposition of law, the amendment application can be submitted at any stage of proceedings. It is further submitted that the amendment in question was necessary for the purpose of determination of the real controversies/issues between the parties. It is also submitted that the conducting lawyer died during the proceeding of the suit and thereafter, new lawyer was engaged by the plaintiffs-petitioners in the year 2009. The learned counsel for the petitioners further submitted that the suit is of the year 2004 and the issues were framed in the year 2008 and thereafter, the new lawyer was engaged in the year 2009. It is further submitted that certain facts were not within the knowledge of the petitioners and therefore, it could not be brought on record at the initial stage of the filing of the suit and therefore, by way of this amendment, the plaintiffs-petitioners requested the court below to permit them to introduce the facts, which are relevant for the purpose of determining the right, title and interest in the suit property. Learned counsel for the petitioners in support of his arguments referred to and relied upon the following decisions:- 1. (1991) 2 BLJR 42 2. (2011)12 SCC 268 3. (2008) 14 SCC 364 4. 2012 (3) JCR 184 , & 5. 2010 (1) JCR-5 (S.C.) 4. Learned counsel for the petitioners in support of his arguments referred to and relied upon the following decisions:- 1. (1991) 2 BLJR 42 2. (2011)12 SCC 268 3. (2008) 14 SCC 364 4. 2012 (3) JCR 184 , & 5. 2010 (1) JCR-5 (S.C.) 4. As against this, the learned counsel for the respondent while opposing this petition tried to justify the order passed by the court below and submitted that the court below after careful consideration of the facts of this case, rejected the amendment application, filed by the petitioners, as it was submitted at belated stage and the nature of the suit is likely be to changed on account of such amendment. Learned counsel for the respondent in support of his submission has also referred to and relied upon the judgment reported in (2008) 14 SCC 364 [Rajkumar Gurawara Vs. S.K. Sarwagi and Company Private Limited and Anr.] and submitted that the question of due diligence has been properly considered by the court below . 5. Considering the aforesaid rival submissions of the learned counsel for the parties and from perusal of impugned order as well as materials placed on record, it appears that the amendment application was submitted by the plaintiffs-petitioners under Order VI Rule 17 CPC at the stage of argument, which was rejected by the court below. It further appears that the oral evidences were concluded in the matter and thereafter, at belated stage, such amendment application was submitted when the judgment is ready for pronouncement. From perusal of the amendment petition, it also appears that if the same is allowed, the nature of the suit is also likely to be changed and, therefore, the view taken by the court below appears to be correct and in accordance with law and as such, the amendment cannot be allowed at the belated stage when the matter is kept for the argument, meaning thereby, the matter is almost concluded. Moreover, the factor of due diligence is also required to be taken into consideration at the time of taking decision under order-VI, Rule 17 CPC, as held by the Hon'ble Apex Court in its various judgments. The judgment which is referred to and relied upon by the learned counsel for the respondent i.e. (2008) 14 SCC 364 is relevant for the purpose of deciding the present case. The judgment which is referred to and relied upon by the learned counsel for the respondent i.e. (2008) 14 SCC 364 is relevant for the purpose of deciding the present case. It appears that the view taken by the learned court below is in consonance with the law as well as the judicial pronouncement by the Hon'ble Apex Court, referred above. So far as the case law, which has been referred to and relied upon by the learned counsel for the petitioners-plaintiffs is concerned, the amendment application can be moved at any stage of the proceedings of the suit but the said amendment can not be allowed where the nature of suit is likely to be changed. As discussed in the present case, the entire basis of the claim of the suit is going to be changed as initially the plaintiffs were claiming their right, title and interest on the basis of gift whereas, in amendment application, which has been moved by the plaintiffs-petitioners, the basis of the entire claim is based on inheritance and therefore, the entire basis of claim is going to be changed, if the amendment application is allowed and therefore, the view taken by the court below appears to be in accordance with Law and intervention of this Court under Article 227 of the Constitution of India is not needed. 6. The learned counsel for the petitioners-plaintiffs alternatively requested that he may be permitted to withdraw the suit with a permission to file a fresh suit, so that the petitioners-plaintiffs may not be deprived of from claiming his right, title and interest in the suit property. Learned counsel for the respondent objected this contention and submitted that the question of limitation will come in way of grant of such permission. 7. Looking to the social and economic background of the plaintiffs-petitioners as they belongs to tribal region, they should be given at least one opportunity to put forward their real substantial issues of the case before the court below so that substantial justice can be delivered by ignoring technicalities, which is the essence of justice. 8. In the light of the above facts and circumstances of the present case, this court is of the view that the plaintiffs-petitioners are required to be granted permission for withdrawal of the present suit if they desirous to do so, with a permission to file fresh suit. 8. In the light of the above facts and circumstances of the present case, this court is of the view that the plaintiffs-petitioners are required to be granted permission for withdrawal of the present suit if they desirous to do so, with a permission to file fresh suit. As and when such application is moved by the plaintiffs -petitioners, the court below shall consider the same in accordance with law by keeping in mind the observations made by this Court. 9. With the aforesaid observations and directions, this writ petition stands dismissed.