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2019 DIGILAW 1590 (JHR)

Sri Ram Govind Bhagat v. Nasim Akhtar

2019-09-12

SUJIT NARAYAN PRASAD

body2019
JUDGMENT Sujit Narayan Prasad, J. - This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 18.11.2017 passed in Title Suit No.198 of 2013 by Civil Judge (Sr. Division) V, Dhanbad has been assailed whereby and whereunder petition dated 05.12.2016 filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure has been allowed. 2. It is the case of the petitioner/defendant that a suit has been filed by the respondent/plaintiff for declaration of his right, title and confirmation of possession over the suit land along with decree for permanent injunction restraining the defendant/petitioner from disturbing the peaceful possession of the plaintiff over the suit land as per Schedule-A to the plaint i.e. the land situated in Mouza Tilakraidih, Mouza no.169, Khata no.08, Plot no.267 out of total area 38 decimals,30 decimals purchased by the plaintiff vide registered sale deed no.9065 dated 21.12.2012 from rightful owner which is butted and bounded as under: North : Plot no.2401 South : Plot no.1251 East : Plot no.265 West : Plot no.266 & 1251 The petitioner has appeared on being called upon and filed written statement contesting the suit. The plaintiff thereafter filed a petition on 13.05.2014 under Order VI Rule 17 C.P.C for amendment of the plaint to get the boundary mentioned in the sale deed relied upon by the plaintiff especially in the northern boundary of the suit land by substituting other Plot no.267 and 250 instead of Plot no.240 as mentioned in the boundary shown in the sale deed dated 21.12.2012 but the said amendment petition has been rejected vide order dated 11.07.2014. The plaintiff thereafter has got the sale deed rectified by way of rectification dated 25.08.2014 whereby and whereunder the northern boundary of the suit land has been modified to the effect: North :Plot no.250 South : Plot no.125 East : Plot no.265 West : Plot no.266 & 125 The said rectification deed has been issued by the competent authority by modifying the earlier deed wherein the reference of Plot no.240 has been typed as 2401, Plot no.125 has been typed as 1251 and according to the plaintiff the original sale deed there is reference of Plot no.125 but the line "Purn Viram" has been treated by the plaintiff and therefore, in place of 240 and 125 it has been typed as 2401 and 1251 which has been rectified in pursuance to the rectification deed and thereafter another amendment petition has been filed on 07.02.2015 which has not been pressed and again third petition has been filed under Order VI Rule 17 dated 05.12.2016 which is the subject matter of the present writ petition. 3. Mr. Praveen Akhouri, learned counsel for the petitioner has raised the issue in assailing the order dated 18.11.2017 by submitting that prior to the petition dated 05.12.2016 two earlier petitions have been filed one was dismissed while the second was dismissed as not pressed and as such the third petition ought not to have been entertained by the trial Court, further by allowing the aforesaid amendment petition, the cause of action of the suit will entirely be changed and hence the trial court ought to have considered this aspect of the matter but not considered and as such the impugned order is not sustainable in the eye of law. 4. This Court after hearing learned counsel for the petitioner and after going across the pleading made in the writ petition as also the finding recorded therein, has gathered therefrom that the petition dated 05.12.2016 is third in series filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure for seeking amendment of the plaint. The objection has been raised by the petitioner that third petition ought not to have been entertained, therefore, this question is to be answered first. The objection has been raised by the petitioner that third petition ought not to have been entertained, therefore, this question is to be answered first. It is evident from the Order VI Rule 17 that there is no bar in filing but the subsequent petition under Order VI Rule 17 for amending the pleading made either in the plaint or the written statement as the case may be only thing is to be considered by the court while allowing the amendment petition, if the trial court is not commenced the nature and character of the suit may not be allowed to be changed. However, after commencement of the trial i.e. after framing of the issues the amendment cannot be allowed if the nature and character of the suit is going to be changed but it can be allowed in order to avoid multiplicity of the proceeding, subject to the question of limitation and if there is no deviation from the stand taken by the plaintiff either in the plaint or in the written statement filed by the defendant meaning thereby party would not be allowed to resile from the statements either made in the plaint or in the written statement. The fact involved in this case is that rejection of the first petition is based upon seeking amendment in the plaint to the effect that as would appear from order dated 11.07.2014, Annexure-6 to the writ petition, that the amendment has been sought for seeking leave to change the reference of the plot number made in Schedule-A to the plaint. According to the petitioner ''Purn Viram" in Hindi has been treated to be "one" and therefore, the Plot No.125 was the actual reference of the plot in the sale deed but after the reference of the plot number, the plaintiff has considered ''Purn Viram'' as "one" and therefore, reference of the plot number has wrongly been made under Schedule-A to the plaint in place of Plot no.240 and 125 as that of 2401 and 1251 however the said application was rejected vide order dated 11.07.2014 which the plaintiff has not assailed. The plaintiff, thereafter has approached to the registering authority for rectification of deed and accordingly the deed was rectified clarifying the position about the said ''Purn Viram'' and the plot number has been referred as 250,265,125 and 266 upon the same mouza and khata number having the same area. The plaintiff, thereafter has approached to the registering authority for rectification of deed and accordingly the deed was rectified clarifying the position about the said ''Purn Viram'' and the plot number has been referred as 250,265,125 and 266 upon the same mouza and khata number having the same area. The plaintiff thereafter has again filed a petition under Order VI Rule 17 on 07.02.2015 but the same has not been pressed. Again a petition has been filed on 05.12.2016 seeking the said amendment in the plaint. The question herein is that, even accepting the first amendment petition has been rejected but that was prior to rectification deed and after the deed having been rectified another petition was filed which was not pressed, and subsequent thereto the present petition has been filed on 05.12.2016 which has been allowed, can it be said that the nature and character of the suit will be changed? It is the case of the petitioner that by allowing such amendment, the cause of action of the suit would change, but this Court is not agreeing with the said reason for interfering with the order dated 18.11.2017, it is for the reason that while deciding an order by the trial court on a petition filed under Order VI Rule 17 it is not to see the cause of action rather nature and character of the suit it going to be changed after the amendment if allowed to be incorporated either in the plaint or in the written statement, but it is not the case of the petitioner that by allowing the aforesaid amendment the nature and character of the suit will be changed, therefore, this Court is of the view that on the question of cause of action even if it is available, no interference can be shown if the amendment petition has been allowed by the trial court. In view thereof, this Court is of the view that the earlier petition has been rejected and next one has not been pressed, the third one cannot held to be maintainable. In view thereof, this Court is of the view that the earlier petition has been rejected and next one has not been pressed, the third one cannot held to be maintainable. This Court is of the view that if the said amendment petition would not be allowed then what would be the consequence of the rectification deed since the reference of the suit property as has been mentioned in ScheduleA to the plaint is based upon the sale deed prior to issuance of the rectification deed and now in supersession too (partly) to earlier deed so far as it relates to suit property, what would be of the effect of rectification deed and therefore, the same needs to be allowed. The further question would be of "prejudice" whether caused to the defendant/petitioner, but it is not that petitioner has not been given an opportunity to rebut the stand taken after allowing the amendment and since trial court has not been commenced the petitioner has right to rebut the factual aspects at appropriate stage. 5. Therefore, this Court in the entirety of the facts and circumstances and considering the finding recorded, is of the view that if the amendment sought for is not allowed, there would not be proper adjudication of the issues, agitated by the plaintiff and therefore, is not inclined to interfere with the impugned order. Accordingly, the writ petition fails and is dismissed.