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2022 DIGILAW 768 (JHR)

Prabhu Mochi @ Ram v. Krishna Kumar Mahalka

2022-06-30

RAJESH SHANKAR

body2022
JUDGMENT : 1. The present civil miscellaneous petition has been filed under Article 227 of the Constitution of India for quashing the order dated 14th December, 2021 passed by the Civil Judge (Sr. Division)-II, Latehar in Civil Misc. Application No.14 of 2021 (Original Title Suit no.07 of 2013), whereby the application filed by the plaintiffs/petitioners under Order VI Rule 17 read with Section 151 CPC, seeking amendment in the plaint, has been rejected. 2. Learned counsel for the petitioners, while assailing the impugned order dated 14th December, 2021, submits that the learned Trial Court has committed an error in disallowing the application filed by the plaintiffs under Order VI Rule 17 read with Section 151 CPC, undermining the fact that averments with respect to execution of the sale deed in the year 1946 by Lal Sahay Chamar (grandfather of the petitioners) in favour of Baijnath Ganjhu (vendor of the father of the defendants), which is forged and fabricated document obtained fraudulently by the defendatns, was already made in different paragraphs of the plaint. In fact, the plaintiffs came to know about the said fact in a proceeding initiated by the Sub Divisional Officer, Latehar under Section 144 Cr.P.C. being Misc. Case no.183 of 2011. Inadvertently, the plaintiffs could not make specific averment with respect to the said sale deed in the plaint as well as the prayer could not be made for declaration of the said sale deed as void. In fact, the said sale deed i.e. Sale Deed no.230 dated 11th April, 1946 said to have been executed by Lal Sahay Chamar in favour of Baijnath Ganjhu and the subsequent unregistered sale deed allegedly executed by Baijnath Ganjhu on 9th February, 1947 in favour of Murlidhar Mahalka @ Murlidhar Seth were fraudulently obtained and the same were forged and fabricated. The petitioners, accordingly, filed an application before the Trial Court under Order VI Rule 17 read with Section 151 CPC, which was registered as Misc. Application No.14 of 2021, seeking amendment in the plaint. In fact, the said amendment was necessary so as to decide the real controversy involved in the said suit and the same would not change basic nature of the same. 3. Heard learned counsel for the petitioners and perused the contents of the present civil miscellaneous petition. 4. The plaintiffs/petitioners filed Title Suit no.07 of 2013 on 26th February, 2013. In fact, the said amendment was necessary so as to decide the real controversy involved in the said suit and the same would not change basic nature of the same. 3. Heard learned counsel for the petitioners and perused the contents of the present civil miscellaneous petition. 4. The plaintiffs/petitioners filed Title Suit no.07 of 2013 on 26th February, 2013. After appearance, the defendants filed their written statement on 29th November, 2013, mentioning the date of sale deed executed by Lal Sahay Chamar in favour of Baijnath Ganjhu as 11th April, 1946. It is true that the plaintiffs have made averments in the plaint with respect to the said suit, however, specific date of the same was not mentioned therein. Since specific date of the said sale deed was mentioned in the written statement filed by the defendants, it was for the plaintiffs/petitioners to make specific challenge to the same by filing an amendment application within a reasonable time if they intended to do so. However, the application under Order VI Rule 17 read with Section 151 CPC was filed after lapse of about eight years i.e. in the year 2021. 5. In support of his argument, learned counsel for the petitioners puts reliance on the judgment of the Hon’ble Supreme Court rendered in the case of Abdul Rehman & Anr. Vs. Mohd. Ruldu & Ors., reported in (2012)11 SCC 341 . Paragraph no.13 of the said judgment reads as under:- “13. Next, we have to see whether the proposed amendments would alter the claim/cause of action of the plaintiffs. In view of the same, we verified the averments in the unamended plaint. As rightly pointed out by Ms Manmeet Arora, learned counsel for the appellants that the entire factual matrix for the relief sought for under the proposed amendment had already been set out in the unamended plaint. We are satisfied that the challenge to the voidness of those sale deeds was implicit in the factual matrix set out in the unamended plaint and, therefore, the relief of cancellation of sale deeds as sought by the amendment does not change the nature of the suit as alleged. It is settled law that if necessary factual basis for amendment is already contained in the plaint, the relief sought on the said basis would not change the nature of the suit. It is settled law that if necessary factual basis for amendment is already contained in the plaint, the relief sought on the said basis would not change the nature of the suit. In view of the same, the contrary view expressed by the trial court and the High Court cannot be sustained. It is not in dispute that the relief sought by way of amendment by the appellants could also be claimed by them by way of a separate suit on the date of filing of the application. Considering the date of the sale deeds and the date on which the application was filed for amendment of the plaint, we are satisfied that the reliefs claimed are not barred in law and no prejudice should (sic would) have been caused to Respondents 1-3 (Defendants 1-3 therein) if the amendments were allowed and would in fact avoid multiplicity of litigation.” 6. Thus, if the factual matrix had already been set out in unamended plaint and thereafter any amendment is sought, which does not change the nature of the suit and it is necessary to be brought on record by way of an amendment, the Court should normally allow such amendment. Moreover, in paragraph no.10 of the said judgment, the Hon’ble Apex Court has also observed that the parties to the suit are permitted to bring forward amendment of the pleadings at any stage of the proceeding for the purpose of determining the real question of controversy and the Court should be liberal for accepting it, if the same is made prior to commencement of the trial. However, after commencement of the trial, the Court before allowing any application for amendment has to arrive at a conclusion that in spite of due diligence, the party could not have raised such matter before commencement of trial. 7. The case of Abdul Rehman (supra) is clearly distinguishable from the facts of the present case wherein neither the petitioners have been able to explain the inordinate delay of about eight years in filing the amendment application nor have stated in their application filed under Order VI Rule 17 read with Section 151 CPC before the learned Trial Court as to on what legal grounds the challenge is said to be made against the sale deed dated 11th April, 1946, except making general statement that the same was forged and fabricated and fraudulently obtained. The learned Trial Court in the impugned order dated 14th December, 2021 has also considered the issue with regard to limitation for challenging the sale deed, which, as per the Limitation Act, 1963, is barred after three years, and, thus, has held that at such a belated stage the prayer for cancellation of the sale deed cannot be entertained. 8. Learned counsel for the petitioners in course of argument has apprised this Court that the said suit is pending at the argument stage. Ordinarily, reasonable delay in filing the amendment application can be ignored by the court, however, huge unexplained delay of about eight years as has happened in the present case cannot be ignored particularly when the suit is at concluding stage. 9. Under the aforesaid facts and circumstances, I see no reason to interfere with the impugned order dated 14th December, 2021 passed by the learned court below in Civil Misc. Application No.14 of 2021 (Original Title Suit no.07 of 2013). 10. The Civil Miscellaneous petition is, accordingly, dismissed.