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2017 DIGILAW 1596 (JHR)

Dilip Kumar Singh v. State of Jharkhand

2017-09-05

S.N.PATHAK

body2017
JUDGMENT : Dr. S.N. Pathak, J. 1. The present writ petition has been preferred for quashing the order dated 2.09.2006 passed by the learned Sub-Judge-II, Deoghar in Title Eviction Suit No.18 of 2001 whereby and where under the learned Sub-Judge-II has allowed the petition filed by the respondents under Section 6 Rule 17 of CPC dated 11.08.2006 for amending the written statement filed by them on 07.01.2002. Factual Matrix 2. The factual exposition as has been delineated in the writ petition is that the petitioner-plaintiff had filed a Title Eviction Suit No.18/2001 against the respondents for eviction of the defendants-respondents from the suit land and to direct them to hand over vacant possession of the land and house situated at Village-Hirna (Plot No.395 under Basauri Jamabandi, Mauza Bal Bagicha No.257, Taluk-Ghorlas, Ward No.11 of Deoghar, P.O.+ P.S. + Sub-division + District-Deoghar and also for damages. 3. The plaintiff-petitioner had purchased the aforesaid mentioned suit property from the daughter of one Manmohan Bhaduri through a registered sale deed bearing No.589/91 dated 10.11.1991 on payment of legal valid consideration. 4. Thereafter the plaintiff-petitioner was put in possession of the suit property and in due course plaintiff-petitioner got his name mutated in revenue Sirista of the then state of Bihar presently State of Jharkhand and he is also paying the admitted tax and ground rent to the same. 5. The vendor had leased and licensed the aforesaid property to the respondent No.5 upon his request that he intends to run a school namely Hirna Primary School, Deoghar. However, the vendor of the petitioner leased and licensed the suit property with the condition that the respondents may vacate the same as and when required by him. 6. The respondent No.5 and 6 after having the knowledge of the aforesaid transfer of the suit property approached the petitioner, requested him to permit them to continue the license and undertook to vacate the suit property as and when desired by the petitioner. The petitioner allowed to continue in the occupation of the suit property as licensee. 7. The respondents were careless in their attitude and did not take any pain to keep house maintained and as a result the constructed portion in the suit property materially deteriorated and attained dilapidated condition which was endangering the lives of the innocent children. The petitioner requested the respondents to vacate the premises. 7. The respondents were careless in their attitude and did not take any pain to keep house maintained and as a result the constructed portion in the suit property materially deteriorated and attained dilapidated condition which was endangering the lives of the innocent children. The petitioner requested the respondents to vacate the premises. Despite serious efforts made by the present petitioner several times, the respondent did not vacate the present premises and as a consequence of this the petitioner has served a notice under Section 80 of CPC dated 1.11.1999 asking the defendant/respondent to vacate the suit land and thereafter petitioner was compelled to file this Title Eviction Suit No.18/2001 as respondent paid no heed to the aforesaid notice. 8. It is the case of the defendant-respondent is that the defendant-respondents in their written statement has denied the ownership of the petitioner over the suit property and has further stated that the registered sale deed as claimed by the petitioner is forged and fraudulent documents. 9. In para-4 of the written statement the defendants-respondents stated that they are running the Primary School at Hirna over the suit property and that the suit property has been given to them by one Manmohan Bhaduri who died issueless. 10. In the written statement the defendant-respondent further stated that the suit property has vested in them vide notification dated 31.12.1976 issued by law department, Government of Bihar (Control and Acquisition Act, 1976). Thus the averment of the defendant/respondents No.6 that they have come in the possession of the suit property as Licensee and subsequently they have become owner of the same by virtue of vesting in control and Acquisition Act, 1976. 11. An amendment petition dated 11.08.2006 was filed by the respondents under order 6 Rule 17 for amending the written statement. The said Amendment Petition was allowed by the Court and hence the present writ petition was preferred challenging the amendment allowed in favour of respondents. 12. Mr. Prashant Pallav, learned Counsel for the petitioner submits that the learned Sub-Judge-II illegally allowed the amendment petition dated 11.08.2006 filed by the respondents under order 6 Rule 17 of CPC for amending the written statement filed by them on 07.01.2002 which is completely against the settled principles of law. 13. 12. Mr. Prashant Pallav, learned Counsel for the petitioner submits that the learned Sub-Judge-II illegally allowed the amendment petition dated 11.08.2006 filed by the respondents under order 6 Rule 17 of CPC for amending the written statement filed by them on 07.01.2002 which is completely against the settled principles of law. 13. Learned Counsel submits that defendant-respondent filed a petition under order 6 Rule 17 of C.P.C. seeking amendment at para 2 and 4 of the written statement. At para 2 of the written statement the defendant sought amendment in description of suit property. The defendant in its written statement had accepted the description of suit property given by the plaintiff. 14. Learned Counsel further submits that at para 4 of the written statement, the defendant sought for amendment whereby they have tried to withdraw their admission. By the proposed amendment defendants has set up a complete new case by withdrawing their admission to the extent that Manmohan Bahaduri was the owner of the property and instead of that they have contended that the property was owned by one Tulsi Rai and the nature of the suit property being Gair Mazarua Parti Kadim and therefore it is not transferable. 15. Learned Counsel submits that the main objection raised by the petitioner-plaintiff to the proposed amendment by the defendant-respondents was mainly on two grounds: (I) the proposed amendment if allowed changes the very nature of the suit. (II) the amendment sought for at a very belated stage when the argument of the plaintiff is almost complete and defendants have commenced their argument. 16. Learned Counsel submits that the defendants-respondents in its written statement dated 07.01.2002 had accepted Manmohan Badudi the father of the petitioner's vendor to be owner of the suit property. 17. It is the case of the petitioner that they are licensee under Manmohan Bahaduri and Manmohan Bahaduri died issueless. By the proposed amendment a valid interest is created in favour of the respondents, as the predecessor in interest of vendor of the petitioner was admitted to be the owner of suit property and as such on purchase of the suit property the petitioner has acquired all the right title and interest in the suit property. 18. It is not the case of the defendants that the suit property was not transferable. The defendants have not claimed their right through Tulsi Rai. 18. It is not the case of the defendants that the suit property was not transferable. The defendants have not claimed their right through Tulsi Rai. It is their admitted case that they are licensee under Manmohan Bahaduri who was the owner of the suit property and now by the proposed amendment they plead that the owner of the suit property is Tulsi Rai. 19. Learned Counsel further submits that by the proposed amendment defendants are trying to introduce entirely different new case and seeking the displacement of benefit completed from the admission made by the defendants in written statement. 20. Learned Counsel argued that the settled principle of law as reaffirmed in B.K. Narayan Pillai's case; any amendment can be allowed subject to qualification that:- (I) Proposed amendment should not result injustice to other side. (II) Any admission made in favour of the plaintiff should not be withdrawn. (III) Inconsistent contradictory allegations which negate the admitted fact should not be allowed. In the present case the proposed amendment will necessarily cause injustice to the petitioner as the admission made in favour of the petitioner by the defendants by accepting Manmohan Bahaduri to be owner of the suit property and then withdrawing the same by the proposed amendment and pleading Tulsi Rai to be the owner of the suit property with further assertion that the suit land is not transferable in nature. The above said stand of the defendants suffer from inherent contradiction and inconsistency and in effect will dilute the admission wherein they contend to be the Licensee udner Manmohan Bahaduri. 21. In order to strengthen his argument, learned Counsel relied on the following judgments on the point that an admission cannot be withdrawn and by amendment the nature of the suit cannot be allowed to be changed:- 2013(9) SCC 349 (S. Malla Reddy V. Future Builder Cooperative Housing Society & Ors. AIR 1998 SCC 618 (Heeralal V. Kalyan Mal and Ors.) 22. Learned Counsel argues that an amendment cannot be allowed at a belated stage where the party seeking amendment failed to establish due diligence. It is a case where the defendants is a STATE and they failed to produce the document lying in the custody of the STATE. 23. Learned Counsel relied on the reported judgment of “Lakhi Singh & Anr. Vrs. It is a case where the defendants is a STATE and they failed to produce the document lying in the custody of the STATE. 23. Learned Counsel relied on the reported judgment of “Lakhi Singh & Anr. Vrs. Chuto Singh, reported in 2013 (2) JBCJ 498 ; 2013 (4) JBCJ 203 Saroj Kumar Das Vrs. M/s Tata Iron & Steel Company. 24. Learned Counsel further relied on AIR 1995 SC 2284 (2317) para 86 in case of “Gajanan Krishnaji Bapat and Anr. Vrs. Dattaji Raghobaji Meghe and others wherein it has been held that evidence has to be laid in terms of the pleading and not that the pleading has to be made in terms of evidence. 25. Per contra counter-affidavit has been filed. 26. Learned Counsel draws the attention of the Court towards paragraph Nos. 12 to 15 of the counter-affidavit which reads thus: 12. That Dilip Kumar Singh (petitioner herein) has claimed in Title Suit No.18/01 that he has purchased the suit property from Pramila Goswami who became the owner of the property after death of his father Late Manmohan Bhaduri who got the laid in question through settlement by the Landlord of Ghorlash Estate in the year 1939. But the plaintiff of T. Suit No.18/01 has not produced any documentary proof in the learned Trial Court against his claim. 13. That the defendants submitted their w/s with leave and permission of the learned Trial Court that the defendants reserve their right to file additional W/S after obtaining records from the different offices. 14. That the defendants could obtain any how the certified copy of Khasra of the suit property as because, entry in Khatiyan was not available. 15. That in Khasra entry (Annexure-B) the name of Man Mohan Bhaduri is not found rather the name of one Tulsi Rai is found who has got the land in question through settlement No.1 according to survey settlement and according to entry in the Khasra the land is Parti Kadim which is not transferable. Learned Counsel further argues that there is no illegality in the order of learned Sub-Judge-II allowing the petition filed by the respondent under order 6 Rule 17 for amending the written statement filed by them on 07.01.2002. 27. Learned Counsel further argues that there is no illegality in the order of learned Sub-Judge-II allowing the petition filed by the respondent under order 6 Rule 17 for amending the written statement filed by them on 07.01.2002. 27. Be that as it may, having gone through the rival submissions of the parties and after perusal of the relevant document placed on record, this Court is of the considered view that there is substance in the argument of the learned Counsel for the plaintiff-petitioner. The provisions of order VI Rule 17 i.e. the written statement before considering the acceptability or otherwise of the reasoning of the High Court, it is useful to refer to Order 6 Rule 17 CPC. “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 matter, before the commencement of trial.” The said provision was omitted by the Civil Procedure Code (Amendment) Act, 1999. 12. Section 16 of the Amendment Act reads as under:- “16 Amendment of Order 6.-In the First Schedule, in Order 6,- (i)-(ii)**** (iii) Rules 17 and 18 shall be omitted. 13. After stiff resistance by the litigants and the members of the Bar, again Order 6 Rule 17 was reintroduced with provision appended therein. As per the said proviso, no application for amendment shall be allowed after the trial has commenced. However, there is an exception to the said Rule i.e. if the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial, such application for amendment may be allowed.” 28. It is the settled proposition of law that any proposed amendment cannot be allowed which changes the nature of the suit and no amendment can be sought for in the written statement at the belated stage. It is the settled proposition of law that any proposed amendment cannot be allowed which changes the nature of the suit and no amendment can be sought for in the written statement at the belated stage. The amendment in written statement is sought for at belated stage when the evidence of the parties have been closed and the matter is kept for arguments. The term “due diligence” is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after commencement of trial. A party requesting a relief steaming out of a claim is required to exercise due diligence and it is a requirement which cannot be dispensed with. 29. In the instant case the amendment was allowed at the belated stage when the argument of the plaintiff-petitioner has been closed and defendants have commenced their argument. Admittedly, the proposed amendment will cause injustice to the petitioner-plaintiff. This Court is of the considered view that in deserving cases the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order 6 Rule 17 is introduced in 2001 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking the delays in filing the applications. In the light of the above discussions, this Court is unable to accept the reasoning given by the court-below. Accordingly, the order dated 02.09.2006 passed by the Sub-Judge-II, Deoghar in Title Eviction Suit No.18/2001 whereby the learned Sub-Judge-II has allowed the petition filed by the respondents under Order 6 Rule 17 for amending the written statement is hereby set aside. The amendment in the written statement has been sought for at a belated stage when the evidence of the parties have been closed and the matter is kept for argument. A party requesting a relief steaming out of a claim is required to exercise due diligence and it is a requirement which cannot be dispensed with as held by the Hon'ble Apex Court in the case of “ J. Samuel and others Vs. Gattu Mahesh and others”, reported in (2012) 2 SCC 300 . A party requesting a relief steaming out of a claim is required to exercise due diligence and it is a requirement which cannot be dispensed with as held by the Hon'ble Apex Court in the case of “ J. Samuel and others Vs. Gattu Mahesh and others”, reported in (2012) 2 SCC 300 . The Hon'ble Apex Court in “S. Malla Reddy vs. Future Builder Co-operative Housing Soceity & Ors., reported in 2013(9) SCC 349 held that on the basis of the findings recorded by the trial court, the defendants' two petitions under Order 8 Rule 9 and Order 6 Rule 16 CPC were dismissed holding that the defendants cannot be permitted to substitute the earlier written statement wherein there was an admission of the suit claim of the plaintiff society. Resultantly, this writ petition stands allowed.