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2020 DIGILAW 1155 (JHR)

Sarita Prasad v. Nand Kishore Prasad

2020-12-09

RAJESH SHANKAR

body2020
ORDER : The present case is taken up through Video Conferencing. 2. The present writ petition has been filed for quashing the order dated 11.09.2017 (Annexure-4 to the writ petition) passed by the learned Civil Judge, Jr. Div.-IV, Hazaribagh in Title Suit No. 26 of 2011 whereby the petition filed by the defendant No.1/petitioner under Order VI Rule 17 CPC seeking amendment in the written statement has been rejected. 3. The factual background of the case, as stated in the writ petition, is that the plaintiffs (the respondent Nos. 1 & 2 herein) filed Title Suit No. 26 of 2011 in the Court of the Munsif, Hazaribagh against the defendants praying therein for declaration of their right, title, interest and possession over the suit land and in the alternative, for recovery of possession and also declaring the sale-deed dated 9.11.2004 as illegal, void, inoperative and not binding upon the plaintiffs. The claim of the plaintiffs is that the land appertaining to Khata No. 42, Plot Nos. 57, 59, 60, 69, 478, 481, 482, 484, 485 & 487, Village-Kadma, P.S-Sadar, District-Hazaribagh, measuring an area of 13.30 Acres was recorded in the names of Prayag Kandu, Baijnath Kandu and Ramfal Kandu. In the year 1940, the recorded Raiyats filed Partition Suit No. 3 of 1940 which was decreed in terms of compromise on 18.4.1941 and in the said partition, the land measuring an area of 1.15 Acres, out of total area of 2.28 Acres in Plot No. 102 of Khata No. 42 was allotted to the share of the defendant Nos. 10 to 17 of that suit i.e. Partition Suit No. 3 of 1940 and the remaining area of 1.13 Acres towards southern side was allotted to the share of the defendant Nos. 1 to 9 of Partition Suit No. 3 of 1940. It was stated in the plaint that no land was allotted in Plot No. 102 of Khata No. 42 to the branch of Prayag Kandu in the said partition. However, the defendant No.2 being the descendants of Prayag Kandu without having any right, title, interest and possession over the land of Plot No. 102 of Khata No. 42 transferred the part of the land to the defendant No.1 by virtue of registered sale-deed dated 09.11.2004 and as such the said sale-deed is sham and void. However, the defendant No.2 being the descendants of Prayag Kandu without having any right, title, interest and possession over the land of Plot No. 102 of Khata No. 42 transferred the part of the land to the defendant No.1 by virtue of registered sale-deed dated 09.11.2004 and as such the said sale-deed is sham and void. In the said suit, the petitioner filed written statement stating therein that she purchased the land by virtue of registered sale-deed from the defendant No.2 (the respondent No.3 herein) and got her name mutated in the revenue records. The rent receipts are being issued by the revenue authorities and she is in possession over the same. During the pendency of the said suit, the petitioner filed a petition under Order VI Rule 17 read with Section 151 C.P.C seeking amendment in the written statement which was objected by the plaintiffs claiming that the proposed amendment will change the nature of the suit. The Court below in terms with the impugned order dated 11.09.2017 rejected the said petition filed by the petitioner. Hence, the present writ petition. 4. Learned counsel for the petitioner submits that the proposed amendment is formal in nature and would not cause any prejudice to the plaintiffs. The impugned order passed by the learned Court below rejecting the petition filed by the defendant No.1 under Order VI Rule 17 C.P.C seeking amendment in the written statement is illegal and without jurisdiction. It is further submitted that the proposed amendment is very much necessary for real adjudication of the lis and the same could not have been rejected on erroneous consideration. It is also submitted that the learned Court below has misconstrued the provisions as contained in Order VI Rule 17 C.P.C while rejecting the petition filed by the defendant No.1/petitioner seeking amendment in the written statement. 5. Heard learned counsel for the petitioner and perused the relevant materials available on record. The petitioner is the defendant No.1 in Title Suit No. 26 of 2011, who filed a petition under Order VI Rule 17 read with Section 151 CPC seeking amendment in the written statement by incorporating the fact that she has constructed a house over the suit land by taking housing loan from the HDFC Bank. The petitioner is the defendant No.1 in Title Suit No. 26 of 2011, who filed a petition under Order VI Rule 17 read with Section 151 CPC seeking amendment in the written statement by incorporating the fact that she has constructed a house over the suit land by taking housing loan from the HDFC Bank. She also wants to incorporate the fact that after purchase of the suit land, she has amalgamated the same with her another land and has constructed a house and boundary wall over it. She further wants to incorporate that a partition suit bearing No. 23 of 2003 is pending before the Court of the learned Civil Judge, Sr. Div.-II, Hazaribagh between the plaintiffs and the defendant Nos. 2 & 4 and other coparceners of their family with respect to their ancestral land. The Court below has rejected the said petition of the petitioner on the ground that the proposed amendment was sought at the belated stage of the defendant’s evidence when the trial was at the advance stage. It has been observed by the learned Court below that the defendant No.1/petitioner has not brought any material on record to show as to why she could not introduce the said fact at an earlier stage when she clearly alleges that the loan was sanctioned in the year 2005 and the partition suit was of the year 2003 whereas the written statement was filed on 20.12.2011. 6. Before coming to the merit of the case of the parties, I would like to go through the contents of Order VI Rule 17 C.P.C as well as the judicial pronouncements dealing with the scope and extent of allowing any amendment application. “17. Amendment of pleadings.—The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 7. In the case of Vidyabai & Ors. Vs. Padmalatha & Anr. In the case of Vidyabai & Ors. Vs. Padmalatha & Anr. reported in (2009) 2 SCC 409 , the Hon’ble Supreme Court has held as under:- “10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under: “Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” It is couched in a mandatory form. The court’s jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.” 8. It is a trite law that although the Court has power to allow an application for amendment at any stage of the suit which is necessary for the purpose of determining the real questions in controversy between the parties, yet by way of the proviso, certain restriction has been put to the cases where amendment application has been filed after commencement of trial. Thus, the stages of the cases have been divided into two parts for dealing with the amendment application; one is before the commencement of trial wherein an application for amendment may be allowed to determine the real issue in controversy and another is after the commencement of the trial where before allowing the amendment application, the Court has to satisfy that the party seeking amendment has explained that in spite of due diligence, he/she could not raise the matter before the commencement of trial. This requirement is to be mandatorily followed by the Courts. 9. In the case in hand, the petitioner has neither pleaded nor averred any sufficient explanation to meet the delay caused in filing the amendment application. Though an application for amendment can be allowed even after commencement of the trial, the petitioner has neither averred nor explained that in spite of due diligence, she could not amend the written statement before the commencement of the trial. Though an application for amendment can be allowed even after commencement of the trial, the petitioner has neither averred nor explained that in spite of due diligence, she could not amend the written statement before the commencement of the trial. Thus, I am of the considered view that the learned Court below has rightly rejected the said petition of the petitioner having observed that the same was filed at the stage of the defendant’s evidence, although the said fact was within her knowledge even before filing of the written statement. She has also failed to show due diligence in filing the said petition which is a primary requirement for allowing any application for amendment in the plaint/written statement under Order VI Rule 17 CPC. 10. In view of the aforesaid factual and legal position, I see no reason to interfere with the impugned order dated 11.09.2017 passed by the Civil Judge, Jr. Div.-IV, Hazaribagh in Title Suit No. 26 of 2011. 11. The present writ petition is, accordingly, dismissed.