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2013 DIGILAW 985 (PAT)

Jagdish Ram v. Ghuran Chaudhary

2013-08-12

CHAKRADHARI SHARAN SINGH

body2013
ORAL ORDER The petition under Order VI Rule 17 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) filed by the petitioners/plaintiffs before the Court below came to be dismissed by learned Additional Munsif, Saharsa in Title Suit No. 118 of 2001 by an order dated 24.08.2006 which is impugned in the present application under Article 227 of the Constitution of India. 2. I am not going into the facts in detail, in view of the dispute which the present application involves. 3. The petitioners filed Title Suit No. 118 of 2001 for declaration of their right title and possession over the suit land as detailed in Schedule I of the plaint and other ancillary reliefs. The petitioners developed a case that the land belonged to one Ameer Tiyer who had one son Panchu Tiyer. Panchu had two daughters, namely, Banki Devi and Pauwa Devi. After the death of Panchu his daughter Pouwa Devi inherited the property as Banki Devi had died issueless and was living at her sasural before the death. Pouwa had one son, Ramdhari Choudhary who died leaving behind two sons, namely, Narayan Chaudhary and Babulal Chaudhary. Ramdhari had sold his share to the plaintiffs. Other aspects of the pleadings as has been mentioned in the present application are not being referred to as they are not required for the purpose of present case. Respondent no.1, the defendant before the Court below filed written statement. He pleaded, inter alia, that Panchu died leaving behind three daughters, namely, Rajiya, Banki and Pouwa all of whom inherited the disputed land after death of their father Panchu. This is to be noted at this stage itself that the plaintiffs in their plaint had claimed that Panchu had two daughters Banki and Pouwa and his entire property devolved upon Pouwa from whose heirs the plaintiffs had purchased the suit property. In the written statement, the defendants, on the contrary, claimed that all the three daughters of Panchu, namely, Rajiya, Banki and Pouwa inherited the property of their father. Rajiya and Banki gave their share to defendant no.1 for his habitation in the year 1964, whereupon he came in possession after constructing the house. The defendants also claimed that heirs of Rajiya, namely, Ram Kishun choudhary and heirs of Banki Shambhu Choudhary sold their share of land to defendant no.1 on 15.2.2003. Rajiya and Banki gave their share to defendant no.1 for his habitation in the year 1964, whereupon he came in possession after constructing the house. The defendants also claimed that heirs of Rajiya, namely, Ram Kishun choudhary and heirs of Banki Shambhu Choudhary sold their share of land to defendant no.1 on 15.2.2003. It is in this background that the plaintiffs filed an application under Order VI Rule 17 of the Code for amending the plaint to the effect that Panchu had one more daughter, namely, Rajiya who died issueless in her childhood. This is also to be noted that this amendment was filed in the year 2006 when three plaintiffs’ witnesses were already examined and cross-examined. This is to be noted that even plaintiff no.4 was examined as P.W.1 and in course of examination he reiterated that Panchu had two daughters without naming the third daughter Rajiya. 4. Learned Court below rejected the amendment petition on three grounds; firstly that P.W.1, in course of examination did not refer to Rajiya as a daughter of Panchu and he named only two daughters. Secondly, the Court was of the opinion that the amendment was being brought in order to patch up the lacuna left in the case. Thirdly, the petition was vexatious and was brought to linger the disposal of the suit. 5. Mr. Abbas Haider, learned counsel appearing on behalf of the petitioners has submitted that amendment sought if allowed would not have changed the nature of the suit and the Court below in the facts and circumstance of the case ought not to have rejected the amendment. He further submits that had the amendment been allowed, it would not have prejudiced the case of the defendants as such amendment as they themselves in their written statement had stated about third daughter of Panchu, namely, Rajiya. He has placed reliance on following judgments in support of his case:- “1. (2004) 6 SCC 415 (Pankaja & anr. Vs. Yellappa (Dead) By LRS. & ors.) 2. 2002 (2) PLJR (SC) 187 (Prem Bakshi & ors. Vs. Dharam Devi and ors) 3. 2004(4) PLJR 214 (Nand Kishore Sharma Lal Vs. Babu Sharma & ors).” 6. There cannot be any dispute over the proposition of law that it is largely upon the discretion of the trial Court to allow an application for amendment under Order VI Rule 17 of the Code or not. Vs. Dharam Devi and ors) 3. 2004(4) PLJR 214 (Nand Kishore Sharma Lal Vs. Babu Sharma & ors).” 6. There cannot be any dispute over the proposition of law that it is largely upon the discretion of the trial Court to allow an application for amendment under Order VI Rule 17 of the Code or not. True it is that such jurisdiction to allow an amendment petition has to be exercised on judicious evaluation of the facts and circumstances. The question in the present case is as to whether this Court in supervisory jurisdiction is required to interfere with exercise of such discretion by the Court below by refusing to allow amendment in the plaint in the facts and circumstances of the case. In the present case the plaintiffs originally claimed that Panchu had only two daughters and the entire property of Panchu devolved upon one of them as the other died issueless at her in-laws place. The defendants, on the other hand, claimed that Panchu had third daughter also, namely, Rajiya who and whose heirs had given the property in dispute to Respondent no.1/defendant no.1. For the reasons unknown, nearly five years after filing of the suit, the plaintiffs by way of amendment want to introduce a fact that Rajiya was the daughter of Panchu but she died in her childhood and there was no question of her marriage or any issue. The purpose of introducing such fact at a belated stage is not apparent as this fact will have no bearing on the final outcome of the suit. In my opinion, the claim of the defendant no.1 is based on the property having been given by Rajiya and Banki and heirs of Rajiya to defendant no.1. The plaintiffs’ case is based on their claim that they acquired property from the heirs of Pouwa. Apart from the reasons for which the Court below has refused to allow amendment in the plaint, I am of the view that such amendment is not relevant for final adjudication of the real controversy in question. 7. The Supreme Court judgment relied upon by the learned counsel for the petitioners in case of Pankaja vs. Yellappa (supra), in my opinion, will not apply in the facts and circumstances of the present case as I find that the amendment sought was unnecessary for deciding the real controversy in question. 7. The Supreme Court judgment relied upon by the learned counsel for the petitioners in case of Pankaja vs. Yellappa (supra), in my opinion, will not apply in the facts and circumstances of the present case as I find that the amendment sought was unnecessary for deciding the real controversy in question. For the same reason, in my view the other judgment of Supreme Court reported in 2002(2) PLJR (SC) 187 (Prem Bakshi & ors) (supra) can have no application as such refusal to amend the plaint will not cause irreparable injury to the plaintiffs in the facts and circumstances of the case. 8. In view of the above, this application is dismissed.