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2017 DIGILAW 1770 (JHR)

Jiwan Munda v. Birsa Munda

2017-10-11

SHREE CHANDRASHEKHAR

body2017
JUDGMENT : 1. Grievance of the petitioners is, that at the stage of final argument in Partition Suit No. 78 of 2005 application for amendment in the plaint has been allowed. The petitioners seek to challenge order dated 18.04.2009 passed in Partition Suit No. 78 of 2005, whereby the aforesaid application under Order VI Rule 17 C.P.C has been allowed. 2. Plaintiffs instituted Partition Suit No. 78 of 2005 seeking partition of the ancestral land. The suit schedule land comprised Bakast Bhuinhari, Bhuinhari Mundai and Kaime lands. This third type of land is stated to be acquired by individual members on occupancy rights. The defendants appeared and filed their written statement asserting that Bakast Bhuinhari and Service lands which are described under Schedule 'A' land and Schedule 'B' are exempted under Bihar Land Reforms Act, 1950. They have also raised objections to description of the defendants in the plaint. It appears that the suit schedule Property is the ancestral Bhuinhari land belonging to the plaintiffs and the defendants, both, as per Bhuinhari Land Survey, 1869-1880 and Cades trial Survey 1908-1911, which were admitted as correct. After both the parties led their evidence and the suit was pending for final argument, an application for amendment dated 22.02.2009 was filed by the plaintiffs for the following amendment in the plaint :“11(a) that all the defendants converted into Christian religion and a Christian is not eligible to worship Mundai Bhuinhari land and other lands of Bhut Puja and Parbhara.” This application has been allowed by the order dated 18.04.2009. This is the order which has been challenged by the defendants in the present proceeding. 3. Mr. Kaustav Roy, the learned counsel for the petitioners submits that without visualizing the effect of the proposed amendment in the pending partition suit, application dated 22.02.2009 filed under Order VI Rule 17 has been allowed. Effect of the proposed amendment would be that in the suit, the Court would venture to a roving enquiry whether the persons who have adopted Christianity are eligible to worship Mundai Bhuinhari land and other lands of Bhutpuja and Parbhara or not. Such an enquiry in a partition suit is wholly unwarranted. Finally, it is submitted that effect of the amendment would be that nature of suit would change. Petitioner has relied on decision in “J. Samuel and Others Vs. Gattu Mahesh and Others” reported in (2012) 2 SCC 300 . 4. Such an enquiry in a partition suit is wholly unwarranted. Finally, it is submitted that effect of the amendment would be that nature of suit would change. Petitioner has relied on decision in “J. Samuel and Others Vs. Gattu Mahesh and Others” reported in (2012) 2 SCC 300 . 4. Supporting the impugned order dated 18.04.2009, the learned counsel for the respondents submits that on admission of the defendants that they have converted to Christianity the proposed amendment was necessitated. 5. In application dated 22.02.2009 the plaintiffs have averred as under: “1. That in plaint of the plaintiff due to bonafide mistake the pleadings that all the defendants have converted themselves into Christian religion. 2. That a Christian is not eligible to do the service land. 3. That plaint is liable to be amended in para 11 (a) after para 11 of the plaint. 4. That it is not going to change nature of the suit. 5. That without amendment of the suit so far as the petition of service land of Munda Community cannot be decided.”. 6. A bare perusal of the aforesaid stand of the plaintiffs would disclose that they have neither disclosed the reason for filing the amendment application at the fag end of the trial, when the suit was posted for final hearing. They have also failed to disclose whether this information that the defendants have converted themselves to Christianity was known to them prior to filing of the suit or not, and if not, when and how they have derived this information. 7. In “J. Samuel and Others Vs. Gattu Mahesh and Others” reported in (2012) 2 SCC 300 , the Supreme Court has observed as under: “12. The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The Court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. Therefore, at times it is required to permit parties to amend their plaints. The Court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However to balance the interests of the parties in pursuit of doing injustice, the proviso has been added which clearly states 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.” 8. In “J. Samuel”, proviso to Order VI Rule 17 C.P.C has been held mandatory. Party to a suit seeking amendment after the trial has commenced must aver and establish that in-spite of due diligence, the fact which is sought to be incorporated by amendment could not be discovered. The application dated 22.02.2009, when scrutinized in the light of decision in “J. Samuel” and proviso to Order VI Rule 17 C.P.C, would disclose that it does not satisfy the mandatory requirement under Order VI Rule 17 C.P.C. The trial Judge itself has recorded that the amendment was “highly belated” still, it has not been examined, whether the plaintiffs had exercised due diligence or not. Moreover, in a partition suit whether the defendants have converted to Christianity or not, and whether they continued to be a member of Schedule Tribe or not, are not the issues which are required to be adjudicated for deciding the claim of the parties in a partition suit. 9. In view of the above, I find serious infirmity in order dated 18.04.2009 and accordingly, it is set aside. 10. The writ petition stands allowed.