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2018 DIGILAW 1956 (JHR)

Most. Gauri Devi v. Reshmani Mahato

2018-08-27

SHREE CHANDRASHEKHAR

body2018
ORDER : The petitioner, who is plaintiff in Title Suit No.92 of 1998, is aggrieved of order dated 20.03.2012 by which her application for amendments in the plaint has been rejected. 2. Plea urged on behalf of the plaintiff is that the proposed amendments would not change the nature of the suit and it would not cause any prejudice to the defendants and, therefore, for bringing complete facts on record the proposed amendments are required to be incorporated in the plaint. 3. Order VI Rule 17 CPC which permits amendment in the pleadings at any stage of the proceedings is founded on the principles of equity, justice and good conscience. Order VI Rule 17 CPC provides that the court may permit either party to amend his pleadings at any stage of the proceedings, however, Rule 17 CPC itself puts a limitation on powers of the court to permit amendment in the pleadings. It provides that if amendment in the pleadings is necessary for the purpose of determining the real question in controversy between the parties, all amendments in the pleadings can be permitted on such terms as the court may deem just and proper. After Order VI Rule 17 CPC was amended by the Code of Civil Procedure Amendment Act, 2002 and a proviso was inserted therein, further limitation has been put on powers of the court to permit amendment in the pleadings. It provides that no application for amendment shall be allowed after the trial has commenced and by now it is well-settled that proviso to Order VI Rule 17 CPC is mandatory. However, proviso to Order VI Rule 17 CPC itself carves out an exception. It provides that if inspite of due diligence the matter could not have been raised by the parties before the commencement of trial, amendment in the pleadings can be permitted. In “Salem Advocate Bar Association, T.N. Vs. Union of India” reported in (2005) 6 SCC 344 , scope of proviso to Order VI Rule 17 CPC has been discussed by the Supreme Court in the following words : 26. ........“The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. ........“The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision”. 4. It has been held that Order VI Rule 17 CPC consists of two parts; the first part is discretionary whereas the second part is imperative. The fundamental test when amendment in the pleadings shall be permitted is whether the proposed amendment is necessary for adjudicating real dispute between the parties. The expression “real question in controversy between the parties” in Rule 17 CPC must be examined in the context of initial pleadings of the parties. It is not that in all cases where other party can be suitably compensated or before trial in the suit has commenced parties can be permitted to amend their pleadings, it is only such amendment which shall have a co-relation to the initial pleadings of the parties and which is necessary for adjudicating the real question in controversy that can be permitted; of course subsequent developments, if necessary, also can be incorporated through amendment in the pleadings. In “Ragu Thilak D. John Vs. S. Rayappan” reported in (2001) 2 SCC 472 it has been observed that amendment cannot be claimed as a matter of right. 5. Title Suit No.92 of 1998 was instituted for a declaration that the sale-deed dated 29.12.1981 executed by Mosst. Harkhi in favour of defendant nos.1 to 6 is null and void and not binding upon the plaintiff. The plaintiff has also prayed for confirmation of her possession over the suit 'A' land and in the event she is found dispossessed she be given khas possession of the schedule 'A' land. The plaintiff has pleaded that 14.57 acres land under Khata No.16 in village-Karmatanr, P.S-Jamua, District-Hazaribagh were recorded in the name of Lochan Mahato who died leaving behind two sons namely, Doman Mahato and Andi Mahato. Susbequently, Andi Mahato died leaving behind a daughter-Harkhi who was married to Dayal Mahato. Doman Mahato died leaving behind his widow Mostt. Jhalia Devi. The said Mostt. Susbequently, Andi Mahato died leaving behind a daughter-Harkhi who was married to Dayal Mahato. Doman Mahato died leaving behind his widow Mostt. Jhalia Devi. The said Mostt. Jhalia Devi sold 13.57 acres land in Khata No.16 (claims that it was written 23.57 acres) to Jorawar Choudhary through a registered sale-deed dated 20.10.1944 for a valid consideration of Rs.800/-and the said Jorawar Choudhary was put in actual khas possession over the suit land. It is also pleaded that the said Jorawar Choudhary died issueless leaving behind his widow Mostt. Gendia who sold 0.90 acres land in Plot No.70 and 0.06 acres in Plot No.122 under Khata No.16 to Daulat Mahato and his brothers through a registered sale-deed for valid consideration. She has also sold 1.57 acres land in Plot No.56 under Khata No.16 to Modil Mahato through a registered sale-deed for valid consideration. The defendants contested the suit by filing written statement. 6. After the parties closed their evidence and arguments on behalf of the plaintiff continued on 06.03.2012 and 12.03.2012, an application under Order VI Rule 17 CPC was filed for the following amendments in the plaint: “I. That in para 7 of the plaint in 3rd line after the figure 56 and before the word 'under', the following may be inserted, 10 decimals of plot no.94' and in the 5th line after the words 'Modil Mahato' and before the word 'Late', by removing s/o, the following may be added, 'and Latu Mahato, sons of ' and in the 8th line after the word 'sale' and before the word 'for', the following may be inserted, 'vide sale deed no.9973 dated 16.05.1968' and in the 9th line the word 'him' may be corrected as 'them' and in the 11th line, the words 'he has' be corrected as 'they have'. II. That in the cause title of the plaint after defendant no.(11 h), the following may be added, (12) Latu Mahato, son of Late Nanhku Mahato, resident of village Karmatanr, P.S Jamua, District-Giridih. III. That after the end of para 8 of the plaint, a new para (8a) may be added: (8a) That defendant nos.1 to 6 Reshmani Mahato, Hiramani Mahato, Ramlal Mahato, Sugan Mahato, Sunder Mahato and Kartik Mahato, all sons of Rupan Mahato purchased 78 decimals of lands of plot no.329 under khata no. III. That after the end of para 8 of the plaint, a new para (8a) may be added: (8a) That defendant nos.1 to 6 Reshmani Mahato, Hiramani Mahato, Ramlal Mahato, Sugan Mahato, Sunder Mahato and Kartik Mahato, all sons of Rupan Mahato purchased 78 decimals of lands of plot no.329 under khata no. 16 of village Karmatanr, P.S Jamua, Distt.-Giridih from Smt. Gendia Devi, w/o Late Moril Chaudhary through a registered deed of sale vide sale deed no.55 dated 5.5.1979 and the vendor Gendia Devi sold the same on the basis of sale deed no.5326 dated 20.10.1994 executed by Mosst. Jhalia, widow of Late Doman Mahato in favour of Jorawar Choudhary, son of Late Dilchand Choudhary.” 7. By way of amendment now the plaintiff intends to insert that 10 decimals land in Plot No.94 was sold to Modil Mahato and Latu Mahato through sale-deed dated 16.05.1968. She also intends to plead that defendant nos. 1 to 6 have purchased 78 decimals land in Plot No.329 under Khata No.16 from Mostt. Gendia Devi through a registered sale-deed dated 05.05.1979. The said Gendia Devi has executed the sale-deed by virtue of her right, title and interest derived from the sale-deed dated 20.10.1944 executed by Mostt. Jhalia Devi in favour of Jorawar Choudhary. 8. The proceeding in Title Suit No.92 of 1998 would disclose that the plaintiff's evidence commenced on 14.01.2004 and after she examined six witnesses her evidence was closed. The defendants have also examined five witnesses and after the parties led their evidence in the suit, defendants' argument continued on 02.03.2012, 03.03.2012 and 05.03.2012 and as noticed above, after arguments on behalf of the plaintiff commenced on 06.03.2012 and continued on 12.03.2012, at this stage application for amendment was filed on 13.03.2012. In her application for amendment the plaintiff has taken plea of inadvertence and typing mistake. Addition of a new paragraph no.(8a) by no stretch of imagination can be said to be a typing mistake. The plea of inadvertence sought to be raised by the plaintiff in view of the proceeding in Title Suit No.92 of 1998, as noticed hereinabove, also must fail. After leading her evidence and cross-examining the defendants' witnesses and, not only that, after argument on her behalf continued for two days, on the plea of inadvertence a new fact, not pleaded in the plaint, cannot be permitted to be incorporated. After leading her evidence and cross-examining the defendants' witnesses and, not only that, after argument on her behalf continued for two days, on the plea of inadvertence a new fact, not pleaded in the plaint, cannot be permitted to be incorporated. Whether the facts sought to be incorporated through the proposed amendments would cause prejudice to the defendants or not, in view of the stage at which the application for amendments was filed, is not relevant. Merely because Order VI Rule 17 CPC permits amendment in the pleadings at any stage of the suit, anything and everything cannot be incorporated in the pleadings through amendment. After all, Title Suit No.92 of 1998 is a suit for declaration that the sale-deed dated 29.12.1981 is null and void and inoperative, and for recovery/confirmation of possession over schedule 'A' land. All that the plaintiff is required to establish is that the said Mostt. Harkhi Devi had no right, title and subsisting interest over the land comprised under sale-deed dated 29.12.1981. Sale of 10 decimals land to Modil Mahato and Latu Mahato through a registered sale-deed dated 16.05.1968 would not establish that Mostt. Harkhi Devi had no right, title or subsisting interest over the suit land which has been conveyed to defendant nos.1 to 6 through sale-deed dated 29.12.1981. 9. Findings recorded by the trial judge that if the proposed amendments are allowed disposal of the suit would be delayed because then both parties would be permitted to lead fresh evidence, is an observation in the context of stage of the trial and it is not the sole ground on which the proposed amendments have been declined. 10. In view of the aforesaid facts, finding no infirmity in the impugned order dated 20.03.2012 the writ petition is dismissed. Petition dismissed.