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2023 DIGILAW 286 (PAT)

Sheela Verma v. State of Bihar

2023-03-14

SUNIL DUTTA MISHRA

body2023
Sunil Dutta Mishra, J. – Heard learned counsel for the parties. 2. The instant Civil Miscellaneous application under Article 227 of the constitution has been filed against the order dated 25.08.2022, passed by learned Additional District and Sessions Judge 16th, Patna in Title Appeal No. 145 of 1994 by which he has rejected the amendment petition dated 10.02.2014, filed on behalf of the plaintiffs/appellants under Order 6 Rule 17 of the Code of Civil Procedure. 3. The petitioners are the appellants (legal heirs of original plaintiff) before the learned lower appellate court. The original plaintiff filed Title Suit No. 28 of 1988 for declaration that land of Patna Municipal Corporation Plot No. 1127 and 1129 being amalgamated had been in peaceful possession and in use of plaintiff belonged to Sri Mahabirjee of Kamta Shakhi Math and by long possession and by use for more than 60 years the plaintiff has perfected his right, title and interest over the suit property by adverse possession. The disputed plots no. 1127 and 1129 were amalgamated since before survey and there is no sign of separation and those bear an area 0.171 decimals (equivalent to 5 katha 14 dhurs and 9 dhurki) of holding no. 101/79, Circle No. 9, Ward No. 01 under Patna Municipal Corporation. The further case of the plaintiff is that Baba Ram Das Jee had got constructed a temple of Sri Mahabirjee and a pukka well in about year 1920 over a portion of the plots and after his death Samadhi is also made on the said land. After his death, his chela the original plaintiff used to manage the pujapath of Mahabir Asthan and he also got constructed the ashram over the said land and also constructed some temporary hutments for shops for the earning for puja-path and rag-bhog of Sri Mahabirjee. Due to appreshension by the plaintiff that the respondents may demolish the sacred samadhi of Baba Ram Das Jee, he filed the suit. In encroachment proceeding, DCLR, Patna has passed an order for removal of encroachment over the said land which was lastly quashed by this court in CWJC No. 2396 of 1977 vide order dated 04.07.1979. 4. The learned trial court dismissed the said suit vide it’s judgment and decree dated 23.09.1994, against which the plaintiffs/appellants filed title appeal no. In encroachment proceeding, DCLR, Patna has passed an order for removal of encroachment over the said land which was lastly quashed by this court in CWJC No. 2396 of 1977 vide order dated 04.07.1979. 4. The learned trial court dismissed the said suit vide it’s judgment and decree dated 23.09.1994, against which the plaintiffs/appellants filed title appeal no. 145 of 1994 before the learned District Judge, Patna which is pending for its final disposal in the court concern. 5. During the pendency of the appeal the plaintiffs/ appellants have filed an application under Order 6 Rule 17 CPC seeking addition of cadastral plot number and khata number in schedule of the plaint stating that the same has not been mentioned in the schedule of the plaint since appellants were not aware about the same rather they got the information about the same during the pendency of the appeal itself which are necessary for proper and effective adjudication of the case. The objection petition had not been filed on behalf of respondnets but it was objected on the ground that the same has been filed to delay the disposal of appeal. The said amendment petition was rejected by the learned lower Appellate Court vide impugned order dated 25.08.2022 on the ground that the same has been filed belatedly to delay the disposal of old appeal and also on the ground that sufficient reasons have not been shown. 6. Learned counsel for the petitioners submits that the learned appellate court below has failed to appreciate that all the foundational facts are already on record and by the amendment appealants only want to insert cadastral plot number and khata number and the same would not change the nature of suit and by this amendment no prejudice will cause to the respondents. He has further submitted that Municipal Survey Map, Municipal Khatian, and Cadastral Map have been exhibited and in the report of karamchari, there is discussion about both the khatian and it is necessary to bring on record the cadastral khatian and plot. He has submitted that there was no delay in filing the amendment petition when the appellants got the knowledge with respect to cadastral khatiyan and plot number and no fresh evidence need to be given. He has submitted that there was no delay in filing the amendment petition when the appellants got the knowledge with respect to cadastral khatiyan and plot number and no fresh evidence need to be given. Further, he has submitted that the learned court below failed to appreciate that it is well settled law that if foundational facts is on record and no prejudice is going to be caused to other side then amendment can be allowed at any stage. On these grounds, learned counsel for the petitioners prays to allow the application. 7. On the other hand, learned counsel for the respondents supported the impugned order and submitted that the petitioners want to delay the adjudication of the old case by filing the various applications. He has submitted that the suit is of the year 1988 and the appeal is of the year 1994 and the said amendment application had been filed on the final stage of the disposal of appeal. Accordingly, the same cannot be allowed and he prayed to dismiss this application. 8. The principles governing applications seeking amendment of pleadings moved under Order 6 Rule 17 are well settled. The whole object and purpose of introduction of Order 6 Rule 17 CPC is to avoid multiplicity of proceeding and to settle the entire dispute at rest, thus keeping in view the expression “at any stage of the proceedings” employed in Order 6 Rule 17 CPC, the court is competent to deal with the application for amendment as it keeps seisin over the case till the controversy is not decided at any point of time even at the stage of second appeal. 9. It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting malafide or that by his blunder he had caused injury to his opponent which cannot be compensated by an order of cost. 10. The court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting malafide or that by his blunder he had caused injury to his opponent which cannot be compensated by an order of cost. 10. There is no impediment or total bar against an appellant court permitting amendment of pleadings, provided the party seeking amendment should offer a reasonable explanation for delay in making the application seeking amendment and he has to adduce, strong and valid reasons as to why amendment sought for, was not made in the trial court. 11. Delay in applying for amendment or possibility of proceedings getting protracted were the prayer for amendment to be allowed, are not, therefore, statutorily envisaged as grounds on which a prayer for amendment of pleading may legitimately denied. 12. The judgment of the Hon’ble Supreme Court in Andhra Bank vs. ABN Amro Bank (AIR 2007 SC 251) observed that delay in applying for amendment cannot be a sole ground to reject the prayer. 13. The provision of Section 107 CPC provides that appellate court shall have the same power and shall perform as may be the same duties as conferred and imposed by this Code of Civil Procedure on courts of original jurisdiction in respect of suit instituted therein. The appeal is continuation of suit and keeping in view the mandate of Section 107 CPC, the appellate court possesses the jurisdiction to allow the amendment application for the ends of justice keeping in view the facts and circumstances of a particular case. 14. The law is well settled that if justice wants, amendment could be allowed at the appeal stage also. I find amendment sought for is in the nature of clarification of suit land, I do not find any bar in allowing such amendments which would not change the nature of suit and will not cause any prejudice to the respondents. 15. In view of the aforesaid facts and circumstances of the case, as discussed above, the amendment sought by the petitioners/plaintiffs shall not prejudice the case of the respondents/defendants and shall advance the cause of justice. 16. In the result, the application is allowed and the impugned order dated 25.08.2022 passed in title appeal No. 145 of 1994 by the learned Additional District Judge- 16th , Patna is hereby set aside. 16. In the result, the application is allowed and the impugned order dated 25.08.2022 passed in title appeal No. 145 of 1994 by the learned Additional District Judge- 16th , Patna is hereby set aside. Accordingly, the amendment sought by the petitioners/appellants is allowed and they are permitted to make necessary amendment in the plaint within four weeks. Since, the appeal is very old, the appellate court below shall take steps for expeditious disposal of appeal and both parties are directed to assist the court in disposal of the same.