Research › Search › Judgment

Patna High Court · body

2022 DIGILAW 1078 (PAT)

Anil Kumar Sah @ Anil Kumar v. Most. Tara Kuwar

2022-12-13

ANIL KUMAR SINHA

body2022
Anil Kumar Sinha, J.—Heard Mr. Vinod Singh, learned counsel for the petitioner and Mr. Chandra Kant, learned counsel for the plaintiff/respondent. 2. The petitioner is defendant in Title Suit filed by the plaintiff/respondent bearing Title Suit No. 78 of 1997. The Title Suit has been filed for declaration that the gift deed dated 7.12.1993 executed by one Kedar Sah in favour of the defendant/petitioner, is forged, fabricated, sham document and the same be declared illegal, null and void. 3. One Moti Sah who is the father of Chotelal Sah, plaintiff and Kedar Sah, executed gift deed in favour of the defendant/petitioner. While challenging the gift deed, various grounds have been taken by the plaintiff including the ground that there was no intention of Kedar Sah to execute the gift deed in favour of the defendant No. 1 and he never executed the same, as such, no occasion had arisen in favour of the defendant No. 1 to accept the gift given by Kedar Sah. 4. The suit filed by the respondent/plaintiff was dismissed by judgment and decree dated 19.9.2003 and an appeal bearing Title Appeal No. 110 of 2006 has been filed by the plaintiff/respondent which is pending before the 1st Additional Sessions Judge cum Special Judge, Siwan. The petition for amendment has been filed at the appellate stage by the plaintiff/respondent which has been allowed by the impugned order dated 27.7.2019. 5. While assailing the impugned order, learned counsel appearing for the petitioner submits that the learned District Appellate Court has committed material irregularity by allowing the amendment at the appellate stage inasmuch as it will give rise to de novo trial and will also seriously prejudice the petitioner. Learned counsel further submits that the ground of typographical error which has been taken by the plaintiff/appellant in order to bring the amendment at the appellate stage, is not tenable inasmuch as by way of amendment at the appellate stage, the plaintiff wants to add a new ground to challenge the gift deed whereas the various ground for challenging the gift deed has already been taken by the plaintiff which would be evident from paragraph-15 of the plaint. He next submits that the ground which the plaintiff wants to add by way of amendment in the plaint at appellate stage, was very much available to the plaintiff, but the plaintiff has failed to show his due diligence and has tried to introduce a fresh ground at advance stage of the appeal in order to delay the disposal of the appeal. Accordingly, submission is that the amendment brought by the plaintiff is not bona fide. In his support, learned counsel relies upon the judgment of Hon’ble Supreme Court, in the case of J. Samuel vs. Gattu Mahesh, reported in (2012) 2 SCC 300 [: 2012 (2) BLJ 215 (SC)], and in the case of Mashyak Grihnirman Sahkari Sanstha Maryadit vs. Usman Habib Dhuka, reported in 2013 (2) PLJR 356 (SC). 6. On the other hand, learned counsel for the respondent/plaintiff submits that the proposed amendment will not change the nature of the suit as well as cannot be treated as a new ground for challenging the gift deed. According to the plaintiff/respondent, the gift deed has been challenged on various grounds including the grounds that the donor did not execute the gift deed willingly and intentionally. The present amendment has been brought by way of clarification of the grounds which have already been taken in the plaint. The proposed amendment is clarificatory and explanatory in nature and does not deviate from the ground which has already been taken by the plaintiff in the plaint. Learned counsel next submits that the clarificatory facts which the plaintiff wants to add, is that the donor of the gift deed, namely, Kedar Sah, was an educated person used to read and write also and there was no occasion for him to put his thumb impression on the gift deed. Kedar sah has executed many sale deeds, in which, he has put his signature and one of those sale deeds has been filed by the petitioner in the suit signed by Kedar Sah and the same has been marked as exhibit. He further submits that the plaintiff/respondent will not lead any evidence pursuant to the proposed amendment and the petitioner/defendant is free to file his additional written statement. If the proposed amendment is allowed, it will not prejudice the case of the defendant/petitioner and will not give rise to de novo trial. He further submits that the plaintiff/respondent will not lead any evidence pursuant to the proposed amendment and the petitioner/defendant is free to file his additional written statement. If the proposed amendment is allowed, it will not prejudice the case of the defendant/petitioner and will not give rise to de novo trial. In support of his argument, learned counsel for the defendant relied upon a judgment of this Court reported in the case of Suresh Lal Srivastava vs. Raghunath Srivastava, reported in 2003(2) PLJR 147 and Mariam Khatoon vs. Husna Ara Begum, reported in 1997 (1) PLJR 505 . 7. I have heard learned counsel for the parties and have gone through the materials available on the record. It is an admitted position that the gift deed executed by one Kedar Sah has been challenged by the plaintiff/respondent on various grounds include for declaration that the deed is forged, fabricated, sham, illegal etc. The amendment which has been proposed by the plaintiff is attached at Annexure-P/2 of this petition which reads that Kedar Sah was an educated person and if he had executed the gift deed and had got it registered, then, certainly, he would have signed the deed by his pen and in his handwriting and would have executed the deed in front of the Registrar who had accepted his signature also and he had no occasion to get his signature done by some other person. From perusal of the amendment sought by the plaintiff, it transpires that the same cannot be treated as a new ground in view of the fact that the plaintiff has taken various other grounds in the plaint for challenging the amendment and one of the grounds is that the gift deed was not executed by Kedar Sah intentionally and willingly and the same is sham, forged and fabricated. 8. In so far as the contention of the petitioner that the reason to bring the amendment on the ground of typographical error is not correct, is concerned, in my opinion, the amendment which has been brought, is clarificcatory and explanatory in nature, which, according to the plaintiff is that at the time of typing of the plaint, the Typist and Advocate, inadvertently, forgot to type the amended facts in the plaint. The further contention of the petitioner, that the amendment sought by the plaintiff was within the knowledge of the plaintiff at the time of filing of the plaint and the plaintiff did not show any due diligence, is concerned, in my opinion, the same is not the case over here inasmuch as the proposed amendment is something by which the plaintiff wants to clarify and explain the grounds of challenge to the gift deed which have already been taken in the plaint. 9. It is settled law that the delay in bringing the amendment itself, is no ground to refuse the amendment. The suit has been filed for challenging the gift deed, as such, in my opinion, that the proposed amendment is not changing the nature of the suit and is not introducing a new case and no prejudice shall be caused to the petitioner if the amendment is allowed for settling all the issues and proper adjudication of the case between the parties. The proposed amendment has only elaborated the facts and ground already taken in the plaint and is necessary for just decision of the case. The proposed amendment will not give rise to de novo trial, particularly, when the defendant/plaintiff has made a categorically statement that he will not produce further evidence after the amendment in the plaint. 10. In view of the aforesaid discussion on the point of fact and law, in my opinion, the learned District Appellate Court has not committed any material irregularity and jurisdictional error by allowing the amendment petition. 11. Accordingly, I do not find any reason to interfere with the impugned order. 12. In the result, the application stands dismissed. 13. It goes without saying that the petitioner will have the right of rebuttal before the District Appellate Court in accordance with law.