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2015 DIGILAW 177 (JHR)

Kirtan Mandal v. Shanti Swaroop Jaiswal

2015-02-05

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 27.01.2014 whereby application dated 19.08.2013 under Order VI Rule 17 C.P.C. has been dismissed, the petitioners/plaintiffs have approached this Court by filing the present writ petition. 2. The brief facts of the case are that, a title suit being Title Suit No. 330 of 2009 was instituted by the petitioners seeking a declaration of right, title, interest and possession in respect of suit land with a further prayer for confirmation of possession. In the pending suit, the respondents appeared and filed their written statement on 19.02.2010. After the issues were framed on 19.01.2013 and the plaintiffs examined two witnesses, application dated 19.08.2013 under Order VI Rule 17 C.P.C. was filed by the petitioners seeking amendment in paragraph no. 1 of the plaint which has been rejected vide impugned order dated 27.01.2014. 3. Heard the learned counsel appearing for the parties. 4. The learned counsel for the petitioners submits that the averments made in paragraph no. 1 of the plaint was factually incorrect and when the plaintiffs reliased this mistake, they preferred application dated 19.08.2013 seeking amendment in paragraph no. 1 of the plaint. It is further submitted that the expression “bonafide mistake” is so wide that it would also cover the expression “due diligence”. The plaintiffs who are the poor illiterate villagers were not rendered proper legal advice and therefore, the application under Order VI Rule 17 C.P.C. could not be preferred in time. 5. As against the above, Mr. V. Shivnath, the learned Senior Counsel appearing for the respondent relies on the decision of Hon'ble Supreme Court in “P.A. Jayalakshmi Vs. H. Saradha & Ors.” reported in 2009 (4) JCR 66 (SC) and “Karan Singh & Anr. Vs. State of U.P.”, reported in (2005) 6 SCC 342 and submits that in view of amendment in the Code of Civil Procedure by which proviso to Order VI Rule 17 has been incorporated in the C.P.C., a party seeking amendment is required to aver and establish by cogent evidence that inspite of due diligence, the application seeking amendment could not be moved before the commencement of the trial. 6. I have carefully considered the submissions of the counsel for the parties and perused the documents on record. 7. Paragraph no. 1 of the plaint is extracted below: “1. 6. I have carefully considered the submissions of the counsel for the parties and perused the documents on record. 7. Paragraph no. 1 of the plaint is extracted below: “1. That, the land within Mouza Baramuri, Mouza No. 3, Khata No. 4, Plot No. 404, Area 56 decimals originally belong to and was in possession of Jairam Gope who transferred the land in favour of his wife Bundia Gwalin and the aforesaid Jairam Gope died issueless.” 8. In the written statement, the defendants have stated thus, “11. That, the statement made in Paragraph 1 of the plaint are not fully correct. It is submitted that the lands under Khata no. 4 including the land in Plot no. 404 area 56 decimals originally belonged to and were recorded in the names of Chhotu Mahato and Bishu Mahato sons of Guhiram Mahato and Gandhari Mahatain wife of Dullu Mahato in the last Cadastral Survey Record of rights and they were in possession over the same. But each of the recorded tenants were possessing separate land and the land in C.S. Plot no. 404 was being possessed by Gandhari Mahatain wife of Dulu Mahato.” 9. The plaintiffs have sought the following amendment in the plaint: “1. That, the lands within mouza Baramuri being Mouza no. 3, C.S. Khata no. 4, plot no. 404 along with other plot originally belong to and in possession of Chotu Mahato, Bisu Mahato son of Guhi Ram Mahato and Gandhari Mahatain wife of Dulu Mahato and as such name of the aforesaid person has been recorded in the last cadastral survey of right in C.S. Khata no. 4. 1(a) That said Gandhari Mahatain during her lifetime adopted one Chamu Mahato son of Dulu Mahato. 1(b) That it is specifically mentioned here during lifetime of recorded raiyat there was a mutual partition/Family Settlement (orally) and in the aforesaid Family Settlement plot no. 404 area 56 decimal of land within mouza Baramuri under C.S. Khata no. 4 exclusively fallen in the share of Gandhari Mahatain wife of Dulu Mahato, and after getting the land in Family Settlement said Gandhari Mahatain was in possession over the plot no. 404 and exercising all diverse act of possession of the land. 404 area 56 decimal of land within mouza Baramuri under C.S. Khata no. 4 exclusively fallen in the share of Gandhari Mahatain wife of Dulu Mahato, and after getting the land in Family Settlement said Gandhari Mahatain was in possession over the plot no. 404 and exercising all diverse act of possession of the land. 1(c) That after the death of Gandhari Mahatain her adopted son Chamu Mahato inherited the aforesaid property and came in possession over the same and while remained in possession due to legal necessities and to meet family expenses said Chamu mahato executed registered sale deed vide sale deed no. 3173 dt. 22.04.1941 in favour of Babulal Marwari in respect of plot no. 404 within Mouza Baramuri under C.S. Khata no. 4 area of land 56 decimal along with other plot also. 1(d) That subsequently said Babulal Marwari executed a regd. Sale deed being sale deed no. 11588 dt. 24.12.1943 in favour of Bundia Gwalin within same mouza and same khata area 56 decimal of land and after purchase the land in question said Bundia Gwalin wife of Jairam Gope came in exclusive possession over the same as an absolute owner of the land.” 10. In the application dated 19.08.2013, the amendment sought by the plaintiffs is identical to the stand taken by the defendants in paragraph no. 11 of the written statement. Since, the above amendment sought in the plaint is for correcting a fact which has been admitted by the defendants in their written statement, I am of the opinion that no prejudice would cause to the defendants/respondents, if the amendment application is allowed. The object behind Order VI Rule 17 C.P.C. is justice, equity and good conscience. It is well settled that an amendment can be allowed even at the stage of final hearing of the suit. The only limitation is that the amendment sought by a party would not cause prejudice to the other party. As noticed above, the stand taken by the defendants in paragraph no. 11 of the written statement is consistent with the amendment sought by the plaintiffs and therefore, I am of the opinion that even though the plaintiffs have not specifically averred that inspite of due diligence they could not move the application before the commencement of the trial, the application seeking amendment deserves to be allowed. 11. Accordingly, the writ petition is allowed. 11. Accordingly, the writ petition is allowed. The impugned order dated 27.01.2014 is set-aside and consequently, application dated 19.08.2013 stands allowed. After the proposed amendments are incorporated, the defendants may be afforded opportunities to file an amended written statement.