Bhukhal Mahato, son of late Suku Mahato v. Shanti Mahatain, D/o late Suku Mahato
2018-01-31
SHREE CHANDRASHEKHAR
body2018
DigiLaw.ai
JUDGMENT : Aggrieved of order dated 31.08.2015 passed in Title (Partition) Suit No.43 of 2005 by which amendment in the plaint has been allowed, defendant no.1 has approached this Court. 2. Title (Partition) Suit No.43 of 2005 was instituted for a preliminary decree of partition claiming 1/6th share each in schedule-A, schedule-B and schedule-C properties and for appointment of a Surveyknowing Pleader Commissioner for allotment of the plaintiff 's share in the suit schedule properties. When the suit was posted for argument an application dated 06.01.2015 was filed by the plaintiff for amendment in paragraph nos.14, 15, 16, 17 and 20 on the ground of grammatical mistakes which have crept in those paragraphs of the plaint. This application was resisted by the defendants on the ground that if the proposed amendments are allowed the nature and character of the suit would change. 3. Mr. Arun Kumar, the learned counsel for the petitioner submits that once the plaintiff who is the daughter of late Suku Mahato has admitted that there was a partition of the share of late Suku Mahato, in the garb of grammatical mistake in the plaint, the plaintiff cannot be permitted to plead a new case. The contention raised on behalf of the petitioner is that the proposed amendments would amount to withdrawal of admission by the plaintiff in the plaint. Another ground raised on behalf of the petitioner is that at the stage of final hearing of the suit, considering the nature of the proposed amendments the trial Judge has exercised a jurisdiction which is not vested in it. 4. No doubt there are limitations to the power of the Court under Order VI Rule 17 CPC to permit the parties to amend the pleadings, however, it is also by now well-settled that amendment in the pleadings can be allowed even at the stage of final hearing. Objection by the defendants to the application for amendment under Order VI Rule 17 CPC appears in paragraph nos. 2 and 3 of their rejoinder dated 21.02.2015, which read as under : “2. That, the suit has been filed in the year 2005 and during the argument stage 2015 the present amendment is being filed by the plaintiff. 3. That, on the basis of plaint the Defendants contested the entire suit and the present amendment shall definitely be change the nature and character of the suit.” 5.
That, the suit has been filed in the year 2005 and during the argument stage 2015 the present amendment is being filed by the plaintiff. 3. That, on the basis of plaint the Defendants contested the entire suit and the present amendment shall definitely be change the nature and character of the suit.” 5. A perusal of the plaint in Title (Partition) Suit No.43 of 2005 would unerringly disclose that nowhere in paragraph nos. 14, 15, 16 and 17 the plaintiff has claimed that after the death of Rishi Mahato, Chinta Mahato, Dukhu Mahato, Suku Mahato or Buka Mahato their legal heirs came in physical possession of their respective shares. The specific allegation by the plaintiff is that inspite of her efforts the defendants did not agree for amicable partition of the suit schedule properties. Averments in paragraph nos.14, 15, 16 and 17 are merely narration of facts how the properties have devolved upon the legal heirs and successors. This becomes clear once paragraph no.18 of the plaint is carefully examined. The plaintiff has taken a specific plea that on account of grammatical mistakes in paragraph nos.14, 15, 16, 17 and 20 in place of “will divide” inadvertently the expression “has divided” or “was divided” or “divided” have been typed. The trial Judge recording a finding that the proposed amendments would not change the nature of the suit, and rightly so, for the suit shall remain a suit for partition even after the proposed amendments are allowed, has allowed the application dated 06.01.2015. 6. I find no infirmity in the impugned order dated 31.08.2015 and accordingly, the writ petition is dismissed.