Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 176 (PAT)

Laxmi Prasad Gupta v. Ram Narayan Prasad

2014-02-05

MUNGESHWAR SAHOO

body2014
ORDER Heard the learned counsel, Mr. Amarnath Jha appearing on behalf of the petitioner and the learned counsel, Mr. Ujjwal Kumar Sinha appearing on behalf of the respondents. 2. This application under Article 227 of the Constitution of India has been filed by the plaintiff-petitioner against the order dated 30.11.2011 passed by learned Sub Judge III, Saharsa in title suit No.206 of 2007 whereby the learned court below has rejected the application under Order 6 Rule 17 of the C.P.C. recording a finding that there is gross negligence of the plaintiff. 3. The learned counsel for the petitioner submitted that only 2 witness have been examined on behalf of the plaintiff and the amendment sought for in the plaint are all typing mistakes. No new facts were introduced by the amendment but the court below applying the proviso to Order 6 Rule 17 of the C.P.C. rejected the amendment application. 4. On the other hand, the learned counsel appearing on behalf of the respondents submitted that the finding of the court below is to the effect that plaintiff failed to show his due diligence, therefore, the order impugned cannot be interfered with in supervisory jurisdiction. The learned counsel submitted that in view of the proviso to Order 6 Rule 17 C.P.C., the jurisdiction of the Court is restricted in allowing the amendment application after commencement of trial and in the present case, the trial has already commenced in the suit. The learned counsel relied upon AIR 2009 Supreme Court 1433 (Vidyabai and Ors. Vs. Padmalatha and Anr.). 5. In the present case at our hand, the plaintiff-petitioner filed the suit for declaration of title on the suit property. The defendants filed contesting written statement. Thereafter, during the pendency of the suit after examination of 2 witnesses, the plaintiff filed the amendment application praying for addition of new khata and plot number in schedule I and correction of area 2 katha 4 dhurs in place of 0.24 and in paragraph 13 page 7 in second line after Bansbita “tar gachh” be added. Thereafter, during the pendency of the suit after examination of 2 witnesses, the plaintiff filed the amendment application praying for addition of new khata and plot number in schedule I and correction of area 2 katha 4 dhurs in place of 0.24 and in paragraph 13 page 7 in second line after Bansbita “tar gachh” be added. According to the plaintiff, it is typing mistake and in fact, the old khata number and plot number have been mentioned and the plaintiff wants to introduce the new khata number and plot number and likewise, in the body of the plaint, 2 katha 4 dhurs has been mentioned but in schedule I, wrongly in place of 2 katha 4 dhurs, 0.24 has been typed. Likewise, in paragraph 13 page 7 in second line, “tar gachh” has been left. The learned counsel, therefore, submitted that in this case, the proviso to Order 6 Rule 17 will not apply because it is not new fact rather it is a typing mistake. 6. So far the decision of the Hon’ble Supreme Court relied upon by the respondents i.e. AIR 2009 Supreme Court 1433 (supra) is concerned, it appears that in that case, the trial court rejected the amendment of the written statement holding that by amendment, an entirely new case is sought to be made out. The contention that they had no knowledge of the facts stated therein and the respondents could not gather the materials and information necessary for drafting proper written statement earlier was rejected. The High Court allowed the writ application and set aside the trial court order. The Hon’ble Supreme Court while considering the appeal filed by the defendant held that trial commenced as soon as the issues are framed and ultimately allowed the appeal and set aside the order of the High Court vide paragraph 16 and the matter was remanded to the court below for a fresh decision. 7. In the present case at our hand, it is the case of the plaintiff that the amendment sought for are only typing mistake and no new facts are being introduced. As stated above, from perusal of the amendment application, it appears that the plaintiff is not introducing any new fact. 8. In the case of J. Samuel and Ors. Vs. In the present case at our hand, it is the case of the plaintiff that the amendment sought for are only typing mistake and no new facts are being introduced. As stated above, from perusal of the amendment application, it appears that the plaintiff is not introducing any new fact. 8. In the case of J. Samuel and Ors. Vs. Gattu Mahesh and Ors., 2012(1) PLJR 412 Supreme Court, the Hon’ble Supreme Court has held that the term “typographical error” is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slip of hand or finger but usually excludes errors of ignorance. Therefore, the act of ignorance to perform an action which one has an obligation to do cannot be called a typographical error. In the present case, nowhere it can be said that the plaintiff is introducing a new fact, therefore, he is required to show his due diligence. In the said decision, the Hon’ble Supreme court at paragraph 12 has held that the court’s discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. 9. The Hon’ble Supreme Court in the case of Rajkumar Gurawara Vs. S.K.Sarawagi and company private limited and another, (2008)14 Supreme Court Cases 364 has held that a pre trial amendment can be allowed liberally as the opposite party would not be prejudiced because he will have an opportunity of meeting the amendment sought to be made. However, in the case of amendments after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such an event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso to Order 6 Rule 17 C.P.C. In the present case at our hand, as has been admitted, only 2 witnesses have been examined on behalf of the plaintiff and, therefore, there is no question of any prejudice to the defendants arises. He has yet to produce evidences in this case. He has yet to produce evidences in this case. So far the proviso to Order 6 Rule 17 is concerned, in the present case, it will not apply because the plaintiff is not introducing any new facts and is praying for correction of the typing mistake only. 10. In view of the above facts and circumstances of the case, in my opinion, the learned court below has not exercised a jurisdiction vested in it by law and, therefore, the impugned order is not sustainable. Accordingly, this writ application is allowed. The impugned order is set aside and the amendment application filed by the plaintiff-petitioner is allowed. ?