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2018 DIGILAW 1089 (JHR)

Benedik Kerketta v. Arun K Lakra

2018-05-14

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. – The petitioner has filed affidavit on service of notice upon the respondent. 2. The petitioner, defendant in Title Suit (Eviction) No.25 of 2012, is aggrieved of order dated 20.07.2017 by which amendment in the written statement has been declined. 3. Title Suit (Eviction) No.25 of 2012 was instituted by Arun K. Lakra for a decree for eviction of the defendant from the suit premises on the ground of default in payment of rent from March, 2012. Suit was contested by the defendant denying that he was tenant under Emanuel Kerketta or his wife-Smt. Shushila Kerketta, rather he has claimed that he is adopted son of Emanuel Kerketta by virtue of a deed of adoption dated 04.12.1974. The defendant has asserted that Smt. Shushila Kerketta being a female member of the schedule tribe family cannot inherit any immovable property belonging to a member of the family and that transfer of the suit land was in contravention of section 46 of C.N.T Act, 1908. In the pending suit after the plaintiff ''s evidence was closed, the defendant filed an application for incorporating the following paragraphs in the written statement: 11(a). That the defendant after proper inquiry and investigation has come to know in the month of August 2016 about the fact that the deceased father of the Plaintiff was known as Shanti Prakash Rai and the Plaintiff was known as Arun Kumar Rai therefore neither the father of the Plaintiff nor the Plaintiff himself is a member of Schedule Tribe and the alleged registered deed dated 14.03.2012 being deed no.2600 for the year 2012 is totally in contravention of Chhota Nagpur Tenancy Act and thus ineffective, void, illegal and sham. 4. This application was rejected by the trial judge by the impugned order dated 20.07.2017. Aggrieved, the petitioner has approached this Court. 5. Order VI Rule 17 CPC permits the parties to amend the pleadings, however, it is well-settled that amendment in the pleadings shall not be permitted if the proposed amendment would cause prejudice to the other party. Proviso to Order VI Rule 17 CPC mandates that amendment in the pleadings shall not be permitted after trial in the suit has commenced. Proviso to Order VI Rule 17 CPC has been held mandatory. Application for amendment in the written statement was filed by the defendant on 07.09.2016 when the plaintiff''s evidence was closed. Proviso to Order VI Rule 17 CPC mandates that amendment in the pleadings shall not be permitted after trial in the suit has commenced. Proviso to Order VI Rule 17 CPC has been held mandatory. Application for amendment in the written statement was filed by the defendant on 07.09.2016 when the plaintiff''s evidence was closed. Impugned order dated 20.07.2017 records that now the defendant has started examining his witnesses. The suit is an eviction suit in which ejection of the defendant is sought by the plaintiff projecting himself as the landlord. The trial judge in the impugned order dated 20.07.2017 has observed that in this suit ownership of the plaintiff over the suit property is not required to be established rather, what needs to be established is a relationship of landlord and tenant between the parties. 6. No doubt, amendment in the pleadings which is necessary for adjudicating the real controversy in the suit normally shall be permitted, however, an altogether new fact without any foundation cannot be permitted to be incorporated in the pleadings by way of amendment. Plea raised on behalf of the defendant, that once transfer of the suit schedule property is challenged on the ground of contravention of section 46 of C.N.T Act, 1908, his subsequently knowing that the plaintiff and his father were known by different names which would establish that they are not members of schedule tribe should have been incorporated in the written statement, is bereft of substance. There is no foundation in the application for amendment, insofar as, addition of a new paragraph 11(a) in the written statement is concerned. At the stage of amendment generally merit of the amendment is not examined, however, application under Order VI Rule 17 CPC must meet the requirements in law and it cannot be granted in a mechanical manner. The application dated 07.09.2016 is bereft of foundational facts; neither the date of knowledge nor source of knowledge through which the defendant allegedly came to know that the plaintiff and his father are known as Arun Kumar Rai and Shanti Prakash Rai respectively have been pleaded by the defendant. If a new fact which, if pleaded, brings contradiction in the pleadings cannot be incorporated by amendment. If a new fact which, if pleaded, brings contradiction in the pleadings cannot be incorporated by amendment. In the written statement the defendant has pleaded that the plaintiff belongs to a family of schedule tribe and through amendment now he intends to plead that the plaintiff and his father do not belong to schedule tribe. Moreover, the defendant has failed to wriggle out of the rigors of proviso to Order VI Rule 17 CPC. Reliance on Judgment in "Raj Kumar Bhatia Vs. Subhash Chandra Bhatia,2018 SCCR 138", is misconceived. The fact sought to be incorporated in the written statement by the defendant is definitely not by way of elaboration of facts in the written statement. 7. In the above facts, finding no infirmity in the impugned order dated 20.07.2017, the writ petition is dismissed.