Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 2108 (JHR)

Bijay Mahto v. Suraj Ram Mahto

2017-12-07

SHREE CHANDRASHEKHAR

body2017
ORDER : 1. Aggrieved of order dated 13.04.2017 by which an application for amendment in the plaint has been allowed, the defendant has approached this Court. 2. Title Suit No. 268 of 2013 was filed for a decree of declaration of the plaintiffs' right, title and interest over the suit property and for a declaration that the defendant is occupying the suit property as gratuitous licensee. A decree for recovery of possession of the suit property and for payment of Rs. 10,400/- as mesne-profit have also been prayed. The plaintiffs' claim that the land comprised in C.S. Plot No. 2088 appertaining to C.S. Khata No. 37 within Mouza Hirapur was joint immovable property of Dharu Mahto and his sons/grandsons, for partition of which a Title (Partition) Suit No. 66 of 1931 was instituted. It is pleaded that there was an amicable partition through family arrangements amongst five sons of Rashik Mahto, after his death and the defendant-Bijay Mahto in urgent need of money decided to sell the licensed premises. The offer of sale was accepted and it culminated in registration of a sale deed dated 15.10.1966 for valuable consideration. The defendant filed written statement contesting the claim of the plaintiffs for declaration of their right, title and interest over the suit property. The defendant pleaded that he is not liable to quit and vacate the licensed premises, for in Title (Partition) Suit No. 66 of 1931 the final decree was not prepared. In the pending suit, after the issues were settled, an application dated 24.11.2016 was filed for incorporating the following paragraphs at the end of paragraph no. 9 in the plaint: "It is worthwhile to mention here that suit Plot No. 2088 comprising of total area 07 decimals appertains to C.S. Khata No. 37 of Mouza Hirapur, Mouza No. 7 as would be evident from the certified copy of C.S. record-of-rights finally published on 19th January, 1925 but on the relevant page of the certified copy where Plot No. 2088 appears the number of Khata has been wrongly mentioned as Khata No. 20 and the Deed Writer overlooking the relevant page of the C.S. record-of-rights inadvertently mentioned the number of Khata 20 for Plot No. 2088 but such mistake of Khatian or Khata number is inconsequential in the eye of law." 3. Mr. Mr. Jitendra Kumar Pasari, the learned counsel for the petitioner contends that after the defendant disclosed his stand in the written statement, the plaintiffs now intend to change the description of the suit land which cannot be permitted. The learned counsel further submits that, in fact, the application for amendment was filed when the case was fixed for plaintiffs' evidence. 4. Normally, amendment in the pleadings shall be construed liberally and it can be allowed even at the stage of final hearing. The test is, whether the amendment in the pleadings is necessary for final adjudication of the controversy involved in the suit. Power of the Court under Order 6, Rule 17 CPC, however, is constrained by the proviso to this provision. It is held that proviso to Order 6, Rule 17 CPC is mandatory, however, the Court may allow amendment in the pleadings, if it is found that the matter which is sought to be incorporated in the pleadings could not have been pleaded by the party and it would not cause prejudice to the other party. On admitted facts, the plaintiffs had yet to examine their witnesses, when the application for amendment was filed. The plaintiffs by the proposed amendment do not seek amendment in the relief portion. They have pleaded that on account of inadvertence, description of the suit property was wrongly mentioned. The contention that change in the Khata number of the suit land would cause serious prejudice to the defendant, is liable to be rejected. Anxiety of the defendant is redressed once the defendant is granted liberty to file additional written statement. Whether the plaintiffs have right, title and interest over the amended suit land, would be an issue which can be thrashed out during the trial, for which the parties shall lead evidence. At this stage, when the plaintiffs have yet not examined their witnesses, merits of the claim sought to be incorporated by the plaintiffs in the plaint cannot be scrutinized by the Court. 5. In the aforesaid facts, finding no merit in the challenge to the impugned order dated 13.04.2017, the writ-petition is dismissed.