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2018 DIGILAW 1958 (JHR)

Manjit Kaur v. Narendra K. Patel @ Nandu Patel

2018-08-27

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The petitioners, who are defendants in Title (Partition) Suit No.105 of 2011, are aggrieved of order dated 18.12.2017 by which amendment in the plaint has been permitted. 2. Plea urged on behalf of the petitioners is that had the sale-deeds by which a part of the suit properties has been transferred to strangers been executed after 25.08.2015 those sale-deeds could have been challenged by way of amendment in the plaint, but not a sale-deed executed prior to this date. In short, a subsequent event cannot be a basis for amendment in the plaint. 3. Title (Partition) Suit No.105 of 2011 was instituted by Narendra K. Patel @ Nandu Patel and Ravi Jaiswal for a decree for declaration of their right, title and interest over the schedule ''B'' property and if finally it is found that there was no partition, in the alternative, a preliminary decree for partition of schedule ''A'' property to the extent of their share purchased in schedule ''B'' property. The plaintiffs have pleaded that the suit property, which comprised of 3600 square feet land with dilapidated house standing thereon, was owned by late Harnam Singh who was common ancestor of the defendant nos. 1 to 12. The suit property was allotted to him by the lessor-M/s Tata Steel Limited. He died intestate leaving behind his widow-Thakar Kaur, four sons and two daughters upon whom the suit property devolved on death of Harnam Singh. The defendant nos.6 and 8 and 9 to 12 have sold their respective shares in the suit property which are described in schedule ''B'' through registered sale-deed dated 10.03.2011 and delivery of possession of schedule ''B'' land was given to the plaintiffs. It is pleaded that the defendant nos.3 and 5 entered into an agreement with defendant nos.13 and 14 in respect of the entire suit property described in schedule ''A'', whereupon the plaintiffs approached the defendant nos.1 to 5 as well as defendant nos.13 and 14 not to raise any construction over schedule ''B'' property, however, when they did not listen to the plaintiffs, compelled, the plaintiffs are seeking partition to the extent of their share in schedule ''A'' property. 4. The suit was contested by the defendant nos.1, 6 and 8 to 12 by filing written statement on 22.11.2011 and by the defendant nos.13 and 14 who have filed written statement of defence on 17.12.2011. 4. The suit was contested by the defendant nos.1, 6 and 8 to 12 by filing written statement on 22.11.2011 and by the defendant nos.13 and 14 who have filed written statement of defence on 17.12.2011. The defendant nos.2 to 5 have filed their written statement of defence on 17.01.2012. The defendant nos.1 to 6 and 8 to 12 have taken a stand that there was an amicable partition in which the defendant no.1 transferred his %th share in schedule ''A'' property to defendant no.3 as well as defendant nos. 9 to 12 and the defendant no.6 and 8 have sold their share to the plaintiffs. They have thus supported the plaintiffs. The defendant nos.2 to 5, however, have raised various objections to claim for partition by the plaintiffs and they have taken a position that during his life-time Harnam Singh had acquired several properties in Punjab and Assam and there was an amicable partition between his legal heirs and successors of all the properties belonging to him. The property situated at House No.73, Pennar Road, Sakchi, Jamshedpur which is schedule ''A'' property fell in the joint share of Pratap Singh and Deedar Singh and property situated at Jugsalai, Jamshedpur fell in the share of Swarn Kaur. In course of time Pratap Singh transferred his / share in schedule ''A'' property in favour of defendant no.3 through a registered sale-deed dated 28.01.2009. In respect of the remaining / share in schedule ''A'' property Pratap Singh-defendant no.1 has transferred the same in favour of Hanspal Singh-defendant no.3 for a valuable consideration of Rs. 30 lakhs. 5. At the initial stage, the plaintiffs filed an application under Order 39 Rules 1 and 2 CPC which was rejected by an order dated 03.03.2012. Aggrieved, the plaintiffs filed M.A. No.41 of 2012, however, this miscellaneous appeal was also dismissed by an order dated 16.01.2015. The Special Leave Petition preferred by the petitioners against the order passed in M.A. No.41 of 2012 stood disposed of on 25.08.2015, however, by this order the defendants were directed not to create any third party interest during pendency of the suit. 6. This date, that is, 25.08.2015 is the main thrust of argument raised on behalf of the defendants for challenging legality of the impugned order dated 18.12.2017. 7. Order 6, Rule 17 CPC provides that at any stage of the proceeding amendment in the pleadings can be permitted. 6. This date, that is, 25.08.2015 is the main thrust of argument raised on behalf of the defendants for challenging legality of the impugned order dated 18.12.2017. 7. Order 6, Rule 17 CPC provides that at any stage of the proceeding amendment in the pleadings can be permitted. The reason why amendment in the pleadings can be permitted at any stage of the suit is incorporated in Rule 17 itself. It provides that an amendment which may be necessary for the purpose of determining the real questions in controversy between the parties shall be permitted. It has been held that Order 6, Rule 17 CPC consists of two parts; the first part is discretionary whereas the second part is imperative. The fundamental test whether amendment in the pleadings shall be permitted or not is whether the proposed amendment is necessary for adjudicating real dispute between the parties. By Code of Civil Procedure Amendment Act, 2002 a proviso to Rule 17 CPC was added. A proviso as is understood in law restricts the ambit and scope of the main provision. Effect of amendment in Order 6, Rule 17 CPC is that a statutory limitation has been incorporated on powers of the court to permit amendment in the pleadings. Proviso to Order 6, Rule 17 CPC is mandatory, is by now well-settled. It provides that after issues have been settled parties shall not be permitted to amend their pleadings. 8. Admittedly, in Title (Partition) Suit No.105 of 2011 issues have yet not been settled. 9. The expression "real question in controversy between the parties" in Rule 17 CPC must be examined in the context of pleadings of the parties. An amendment by way of elaboration or explanation or even addition to a fact already pleaded by the parties can always be permitted, subject to the limitation that such new facts should not take the other party by surprise. In other words, effect of the proposed amendment should not be that it would cause prejudice to the other party. In " Salem Advocate Bar Association, T.N. vs. Union of India" reported in (2005) 6 SCC 344 , scope of proviso to Order 6, 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. In " Salem Advocate Bar Association, T.N. vs. Union of India" reported in (2005) 6 SCC 344 , scope of proviso to Order 6, 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 object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision". 10. The plaintiffs have pleaded that during the intervening period, that is, between 16.01.2015 when M.A. No.41 of 2012 was dismissed and 25.08.2015 when the Special Leave Petition was disposed of, the defendant nos.13 and 14 have illegally executed four sale-deeds in favour of nine persons in respect to different portion of the building which has been illegally constructed by them on schedule ''A'' property. The plaintiffs have alleged that sale-deed dated 28.01.2009 and sale-deed dated 07.02.2009 in favour of defendant nos.3 and 5 respectively are void ab initio, illegal and consequently they had no right, title or interest in the properties comprised under the aforesaid sale-deeds to transfer those properties in favour of defendant nos. 15 to 23. The proposed amendments are on account of developments which have taken place after institution of the suit. Due to execution of various sale-deeds not only those sale-deeds have been challenged, the purchasers have been added parties in the suit. No doubt, the purchasers pendente lite are bound by the decree on the principle of lis pendence, but then for an effective and complete decision in the suit the transactions prior to 30.01.2015 also must be brought on record of Title (Partition) Suit No.105 of 2011. 11. At the initial stage the plaintiffs, who have come to know execution of sale-deeds in favour of defendant nos.15 to 23, must be permitted to amend their pleadings. The facts as narrated in the application for amendment and the proposed amendments are really necessary for adjudicating the real dispute involved in the suit. 12. Viewed thus, and for the aforesaid reasons, finding no ground to interfere with the impugned order dated 18.12.2017, the writ petition is dismissed.