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2017 DIGILAW 176 (JHR)

Jugeshwari Devi v. Asha Devi

2017-01-24

APARESH KUMAR SINGH

body2017
ORDER Aparesh Kumar Singh, J. - Heard counsel for the petitioners. 2. The learned Trial Court of Civil Judge-II, Chatra in Partition Suit No. 14/2008 by the impugned order, dated 28-11-2014, has rejected the petition of the defendant Nos. 1 and/ petitioners herein under order VI, Rules 17 of Civil Procedure Code. Petitioners being aggrieved, has approached this Court. 3. Counsel for the petitioners submits that the proposed amendments do not change the nature of the suit and are only for correction of certain typographical errors in the written statement filed by these two defendants. The suit is for partition and defendants have contested the claim of the plaintiffs. Therefore, proposed amendments were proper and have not been filed belatedly in the matter. Learned Trial Court however has rejected the petition without consideration of the issues in the light of principles contained in Order 6, Rule 17 of Civil Procedure Code. It is further submitted that after closing of the plaintiff''s evidence, five defendants witnesses have been examined and examination of these two petitioners being Defendant Nos. 1 and 2 have not been completed. It is further stated that Pleader Commissioner is also requested to be examined. It is submitted that, if amendments are not allowed, petitioners/defendants 1 and 2 would suffer irreparable injuries. 4. By way of Partition Suit No. 14/2008, plaintiffs have sought a decree of partition of the property in the Schedule A- 1 and described in the plaint according to the share of the parties half and half; they have also made a prayer for appointment of Survey Knowing Pleader Commissioner for effecting partition; plaintiffs have also sought a declaration of half share in the schedule A - property in the plaint in their favour; that they are entitled to half share in the Schedule A - property. 5. After filing of the written statement by the defendants, issues were framed in the matter by the learned Trial Court on 5-10-2009 itself. Evidence of the plaintiff were closed on 5-1-2011 itself. Defendants were allowed opportunity to adduce their evidence thereafter. Defendants sought amendment by way of an application filed earlier on 3-2-2011 which however was not pressed. Thereafter again, application was filed on 4-3-2011 seeking proposed amendment. Plaintiffs objected to the proposed amendment by filing a rejoinder as well. 6. Evidence of the plaintiff were closed on 5-1-2011 itself. Defendants were allowed opportunity to adduce their evidence thereafter. Defendants sought amendment by way of an application filed earlier on 3-2-2011 which however was not pressed. Thereafter again, application was filed on 4-3-2011 seeking proposed amendment. Plaintiffs objected to the proposed amendment by filing a rejoinder as well. 6. Learned Trial Court considered the progress of the trial of the suit after its institution in 2008. It also took note of the fact that the defendants have not been able to show any grounds as to why the proposed amendments were not sought for any time earlier during the proceedings of the suit. They also failed to disclose any grounds for delay in incorporating changes in the written statement filed on their behalf. The conduct of the defendants was not found to be diligent enough. The proposed amendments seek to alter the description of the plots in question as well as the adjoining raiyats. There was no justification on the part of the defendants shown before the Trial Court as to how such vital details of the suit property could not be indicated in the written statement filed. 7. Considering all these aspects, learned Trial Court did not find any reason to allow the proposed amendment at that stage of the trial. Reasons indicated in the impugned order and the stage on which the proposed amendments have been sought to be incorporated, do not make out a case for interference in the matter. Trial is at the advance stage as five defendants - witnesses have also been examined. In totality of the facts and circumstances discussed herein above, this Court is not inclined to interfere in the impugned order under Article 227 of Constitution of India. The writ petition is accordingly dismissed.