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2016 DIGILAW 1512 (JHR)

Dinesh Chandra Gupta v. Shrestha Gupta

2016-11-08

APARESH KUMAR SINGH

body2016
Order : Heard counsel for the petitioners. 2. By the impugned order dated 6th September 2016 passed by the Court of learned Civil Judge (Sr. Division)-II, Chaibasa in Title (Partition) Suit No. 26/2013 the amendment petition filed by the plaintiff has been allowed. Petitioners allege that they have not been allowed to file additional written statement to the facts being incorporated by way of amendment petition. 3. Counsel for the petitioners submits that the suit is for partition of property amongst the co-sharers. Schedule to Annexure-1 (plaint) describes the properties subject matter of partition. After framing of the issues, however, by an amendment petition (Annexure-3) the plaintiff has sought to incorporate certain properties described at paragraph-10 which are houses and premises situate under different wards of Chakradharpur Municipality. The valuation of the suit would also change consequently. Petitioners may also be denied opportunity to object to the facts brought on record through the amendment which may adversely affect their defence in the main suit also. Plaintiff, therefore, should not have been allowed to enlarge the scope and subject matter of the partition suit by incorporating additional properties at such an advanced stage of trial. Interest of justice would, therefore, be defeated, if such amendments are permitted to be incorporated. 4. I have considered the submissions of the counsel for the petitioners and perused the relevant records. Admittedly, the suit is for partition. Plaintiff has, while describing the suit properties in the schedule enclosed to the plaint at Annexure-1, valued at Rs.5 lacs, also referred to such other properties, details whereof were not within his knowledge at the time of filing of the suit. Partition suit amongst co-sharers may for once and all determine rival claims in respect of any such property (ancestral property) subject matter of partition as per the applicable law amongst the co-sharers. In case such a plea for incorporating certain properties have been made out by the plaintiff before the evidences of the parties have started, the learned court was not at fault in allowing the amendment petition at this stage in view of the specific provision of Order-VI Rule-17 CPC which reads as under :- “17. In case such a plea for incorporating certain properties have been made out by the plaintiff before the evidences of the parties have started, the learned court was not at fault in allowing the amendment petition at this stage in view of the specific provision of Order-VI Rule-17 CPC which reads as under :- “17. Amendment of pleadings— The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the mater before the commencement of trial.” 5. The nature of the suit is also unlikely to change because of the amendment being allowed. However, the affected parties including the petitioners, who are defendant nos. 2 and 5, may definitely have a right to rebut the new facts brought on record through the amendment allowed by the learned court below. They may also have the liberty to raise issues relating to valuation of the suit which may be raised through the additional written statement. 6. Therefore, on consideration of all the relevant materials on record and the position in law, so far as the provisions relating to amendment under the Civil Procedure Code are concerned, this Court is not satisfied that the learned trial court has committed any error of jurisdiction in allowing the proposed amendments [See: Ram Sahai Vrs. Ramanand & Ors.; 2004(13) SCC 40 ]. The learned court, however, does not appear to have allowed the affected parties/defendants therein to file their additional written statement pursuant to the amendment being allowed. Therefore, without interfering in the substance of the impugned order dated 6th September 2016, it is, however, being modified to the extent that the defendants in the suit proceedings be allowed to file additional written statements to the new amendments being incorporated as per the time to be stipulated by the trial court. This writ petition stands disposed of accordingly.