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2020 DIGILAW 263 (JHR)

Akhileshwar Tiwary v. Kanhaiya Lal

2020-02-10

S.N.PRASAD

body2020
JUDGMENT : S.N. Prasad, J. 1. This writ petition is under Article 227 of the Constitution of India whereby and where under order dated 17.07.2013 passed in Partition Suit No. 10 of 2011 is under challenge by which petition filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure has been allowed. 2. The brief facts of the case as per the pleading made in the writ petition which are required to be incorporated herein reads hereunder as :- The subject matter of the partition suit is for partition of the land among the parties, description of the land as has been referred in paragraph 5 which is being referred hereunder as:- Sl. No. Khata No. Plot No. Area Acquired through Deed No. (i) 57 835 1.10 acres 1373 dt.13.3.58 57 836 2.41 acres 57 841 0.01 acres (ii) 57 836 0.20 acres 6230 dt.1.10.64 839 (iii) 62 838 2 Kathas 10 dhurs (iv) 62 838 6 acres 6756 ¼ dums (v) 126 833 1.16 acres 8767 831 0.02 acres The parties have appeared on being called upon by the trial court. The further case of the plaintiff before the trial court is that since he is seeking 1/6th share in the subject matter of the suit, as such all the defendants are also entitled for partition of the property equal to 1/6th of share. The defendant Nos. 2 and 3, prior to the filing of the partition suit, had alienated the property by transferring it in favour of defendant Nos. 7 to 9. The plaintiff has filed a petition under Order VI Rule 17 of the Code of Civil Procedure seeking amendment in the plaint to the effect as referred herein below:- In Para 11 of the plaint- (A) In the second line from below after the word "Pucca Well" and before the word "Construction" the expression "connecting pucca drains" be added. After the end of Paragraph 11 and before beginning of para 12 of the plaint the following New paragraphs be added- "11-A. that it is admitted fact by Raj Kumar Prasad since deceased husband of defendant no. 2 and father of defendant no. 3. That Bhagmati Devi wife of Shri Hazarilal Sahu through registered deed of sale no. After the end of Paragraph 11 and before beginning of para 12 of the plaint the following New paragraphs be added- "11-A. that it is admitted fact by Raj Kumar Prasad since deceased husband of defendant no. 2 and father of defendant no. 3. That Bhagmati Devi wife of Shri Hazarilal Sahu through registered deed of sale no. 6756 dated 25.10.65 had purchased from Halkhori Tiwary and area 6 katha and 1¾ dhur equivalent to an area of 24 decimals of plot no. 838 of khata no. 62 of village Rerma and through another sale deed no. 7290 dated 19.9.66 she had further purchased in the same plot adjoining the aforesaid area 24 decimals from Jamuna Tiwary an area 2 katha 10 Dhur equivalent to an area 0.09 decimals and had come in possession of the said area. The purchaser in the same plot which has a far bigger area of part plots 24 decimals and 9 decimals adjoin each other and really form a compact piece of land separating itself from remaining area of plot no. 838. Thus this compact piece of land has an area of 0.33 decimals and the purchasers remained in possession of the same. 11-B. that the purchaser Bhagmati Devi, for the protection of her said purchased area 33 decimals she constructed Boundary walls on the west, north, east and partly in the south completing the rest of the southern side with stone foundation. 11-C. That boundary walls were constructed with pucca bricks with mud and plastered with cement for durability thereof in or about the year 1968. Bhagmati Devi left 1½ feet lands beyond the boundary wall for repairing of boundary walls. 11-D. that one Someshwar Prasad and his sons wanted to erect pillars in the middle of western boundary wall and also they were intending to raise walls over the western wall of the land of plot no. 838 in the year 1997. Bhagmati Devi was dead in June, 1994 and Hazari Sao had been old, so Raj Kumar Prasad s/o Hazari Lal i.e. husband of defendant 2 and father of defendant no. 3 had instituted Title suit bearing no. 66 of 97 in the court of Munsif, Daltonganj against Someshwar Prasad and others. Ultimately Someshwar Prasad and others realized their mistake and withdrew their erection from the western boundary wall of the plaintiff. Ultimately the suit was dismissed for default on 21.5.2001. 3 had instituted Title suit bearing no. 66 of 97 in the court of Munsif, Daltonganj against Someshwar Prasad and others. Ultimately Someshwar Prasad and others realized their mistake and withdrew their erection from the western boundary wall of the plaintiff. Ultimately the suit was dismissed for default on 21.5.2001. Therefore constructions of boundary walls on suit land said to be made by defendants 7 to 9 is false and denied by the plaintiff." The defendant Nos. 2 and 3 as also defendant Nos. 7 to 9 filed objection to the petition filed under Order VI Rule 17 of the Code of Civil Procedure. The trial court, after appreciating the contention agitated by the respective parties, allowed the amendment against which the present writ petition has been preferred by the petitioner-defendant Nos. 7 to 9. 3. Mr. Kishore Kumar Mishra, learned counsel appearing for the petitioner/defendant Nos. 7 to 9 has assailed the aforesaid order allowing the amendment on the ground that the fact which has been allowed to be brought in the plaint by way of amendment was well within the knowledge of the plaintiff and as such, the same ought to have been brought at the time of filing of the plaint but having not done so, the amendment ought not to have been allowed by the trial court, but without appreciating the aforesaid aspect of the matter, the amendment has been allowed and therefore, the order impugned is not sustainable in the eye of law. It has further been objected on the ground that the plaintiff wants to insert new facts in the plaint and as such the same is not fit to be allowed. 4. Mr. Amar Kumar Sinha, learned counsel appearing for the defendant Nos. 2 and 3/ respondent Nos. 3 and 4 has adopted the same objection which has been agitated by the learned counsel appearing for the defendant Nos. 7 to 9 before the trial court. 5. 4. Mr. Amar Kumar Sinha, learned counsel appearing for the defendant Nos. 2 and 3/ respondent Nos. 3 and 4 has adopted the same objection which has been agitated by the learned counsel appearing for the defendant Nos. 7 to 9 before the trial court. 5. This Court, after having heard the learned counsel for the parties and before appreciating their respective arguments as also the finding recorded by the trial court deems it fit and proper to refer to the provisions of Order VI Rule 17 of the Code of Civil Procedure and the underlying principle in allowing the amendment under the aforesaid provision which reads hereunder as:- Order VI Rule 17 Amendment of pleadings--The Court may at any stage of the proceedings allow either party to alter or amend his pleadings 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. It is evident from the provision of Order VI Rule 17 of the Code of Civil Procedure that the amendment if sought to be made prior to commencement of the trial, the trial court, while appreciating the contention, is supposed to see only to the effect that the nature and character of the suit is not going to be changed if the amendment sought for prior to commencement of the trial but different parameter is to be adopted if the amendment is being sought for after commencement of the trial i.e., the parties who are seeking amendment are required to satisfy the trial court about due diligence that what prevented the parties from incorporating such statement at the time of filing of the plaint and if the trial court would be satisfied about the reason so explained about due diligence, appropriate order is to be passed. 6. In the instant case, it is admitted fact that the amendment as has been sought for by the plaintiff is before commencement of the trial, meaning thereby, the issue has not yet been framed however, the parties have appeared and filed their respective written statement. 6. In the instant case, it is admitted fact that the amendment as has been sought for by the plaintiff is before commencement of the trial, meaning thereby, the issue has not yet been framed however, the parties have appeared and filed their respective written statement. Therefore, only question to be looked into before commencement of the trial is as to whether allowing such amendment would change the nature and character of the suit or not? In order to come to such conclusion, this Court has gone across the pleading of the plaint, as has been annexed as Annexure-2 to the writ petition wherefrom it is evident that the partition of the property as enumerated in the plaint and as quoted above, has been sought for. 7. The plaintiff and the defendant Nos. 2 and 3 are the joint title holder of the property. However, the defendant Nos. 2 and 3 have sold out the property in favour of defendant Nos. 7 to 9 prior to filing of the present partition suit. Admittedly, the fact which has now been proposed to be incorporated in the plaint could not have been brought in the plaint which necessitated the plaintiff to file a petition under Order VI Rule 17 of the Code of Civil Procedure to the effect as referred in the petition filed under Order VI Rule 17 and as quoted above. 8. Learned counsel appearing for the Respondent Nos. 3 and 4/defendant Nos. 2 and 3 and the petitioner/defendant Nos. 7 to 9 have fairly admitted that in the suit property there is no question of title and the part of the property which has been sought to be inserted in the plaint is not different to that of the suit property, subject matter of the partition suit. However, the objection to the effect that construction over the land which is the subject matter of the petition, has been made. 9. This Court, therefore, is of the view that when in a partition suit there is no dispute about title over the property and if any property or construction made over the landed property, which has been left out to be inserted in the plaint, if proposed to be inserted by way of amendment and if it has been allowed, the same cannot be said to change the nature and character of the suit. Herein, since amendment has been sought for prior to commencement of the trial, which is the admitted fact, therefore, the principle underlying before allowing the amendment petition is to be seen about the fact as to whether the nature and character is going to be changed or not. Since the nature and character of the suit is not going to be changed as observed hereinabove, in such circumstances, if the petition filed under Order VI Rule 17 is allowed, it cannot be said to suffer from infirmity. The only question which can prejudice the defendant if they would not be allowed to file written statement but as would be evident from the impugned order that the trial court has taken care of the prejudice part by granting liberty to file additional written statement and therefore, since the trial court has taken care of the prejudice part to be suffered by the defendants by granting liberty to file additional written statement, in this ground also it cannot be said that the petitioner is going to be prejudiced in any way. 10. In that view of the matter, this Court is of the view that the order impugned is not such an order warranting any interference under Article 227 of the Constitution of India since there is no error apparent on the fact of record. 11. In view thereof, the present writ petition is dismissed, however, with an observation that in pursuance of the liberty already granted by the trial court, the defendants, if so desire, may file their additional written statement.