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2015 DIGILAW 545 (JHR)

Purni Devi v. Nakul Ray

2015-04-28

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 09.07.2013 in Title Suit No. 228 of 2002 whereby, application under Order VI Rule 17 CPC has been rejected, the present writ petition has been filed. 2. The petitioners are defendants in Title Suit No. 228 of 2002. The defendant nos. 1, 2 and 7 filed written statement on 12.09.2003 resisting the relief sought by the plaintiffs. In the pending suit, application dated 23.08.2011 was filed seeking amendment in the written statement by incorporating paragraph no. 5A. 3. The learned counsel for the petitioners submits that the petitioners have specifically denied the claim of partition on the ground that only the legal heirs of Balbhadra Rai are the absolute owner of the suit property. It is submitted that the defendants found some papers pertaining to rent eviction suit which would disclose that Balbhadra Rai paid the entire dues and the entire jote was restored with Balbhadra Rai vide order dated 09.10.1941. The petitioners thereafter filed application under Order VI Rule 17 CPC for amending the written statement which has erroneously been rejected by the Trial Court. 4. In application dated 23.08.2011 the defendants sought incorporation of an additional paragraph which is extracted below : “That the entire suit property had been evicted due arrears of rent passed in Rent eviction case no.294 of 1937 passed by 3rd Court Deoghar, subsequently Balbhadra Rai had paid the entire dues in rent execution case no. 261 of 1940 as such learned S.D.O. has resorted the entire Jote with Balbhadra Rai thus Balbhadra Rai became the full, absolute and exclusive owner of the suit property.” 5. In application dated 23.08. 2011 the petitioners have though not disclosed the date when they traced out some papers regarding the rent eviction suit, it has to be assumed that after discovering the aforesaid documents the application under Order VI Rule 17 CPC was filed. In the written statement the defendants have averred that Balbhadra Rai died in the year, 1980. The petitioners claimed themselves legal heirs and successors of the said Balbhadra Rai. A photo copy of the extract of Entry No. 74 in Rent Eviction Register of 1938-39 has been produced by the counsel for the petitioners which discloses that copy of the same has been obtained on 08.02.2000. The petitioners claimed themselves legal heirs and successors of the said Balbhadra Rai. A photo copy of the extract of Entry No. 74 in Rent Eviction Register of 1938-39 has been produced by the counsel for the petitioners which discloses that copy of the same has been obtained on 08.02.2000. It is thus apparent that the petitioners have taken a false plea in their application dated 23.08.2011 that after tracing the aforesaid documents, application under order VI Rule 17 CPC has been filed. Moreover, in the written statement the defendants have claimed that Sufal Rai, Aaso Rai and Amin Rai died issueless in the year, 1937. The widow of Sufal Rai and Amin Rai remarried and forfeited their right in their husband's property and in this manner Balbhadra Rai became sole owner of the suit property. However, in the application under Order VI rule 17 CPC the petitioners have pleaded entirely new facts in so far as, the right, title and interest of the Balbhadra Rai over the suit property are concerned. In the proposed paragraph 5A in application dated 23.08.2011 it is pleaded that the said Balbhadra Rai paid the entire dues in the Rent Execution Case No. 261 of 1940 and the entire jote was restored to him and thus, the said Balbhadra Rai became the absolute and exclusive owner of the suit property. I am of the opinion that the proposed amendment is contrary to the stand taken by the defendants in the written statement. The object behind Order VI Rule 17 CPC is to provide a party opportunity to plead and produce relevant documents however, pleading in application under Order VI Rule 17 CPC must be by way of explanation to the written statement. A pleading which is contrary to the stand taken in the written statement cannot be permitted to be incorporated by way of amendment. I find no infirmity in the impugned order dated 09.07 2013 and accordingly, the writ petition is dismissed.