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2025 DIGILAW 1221 (JHR)

Subhash Thakur v. Suvarna Puspa Finance Pvt. Ltd.

2025-04-29

SANJAY KUMAR DWIVEDI

body2025
JUDGMENT : SANJAY KUMAR DWIVEDI, J. Heard Mr. Onkar Nath Tiwary, learned counsel appearing for the petitioners, Mr. Rishav Kumar, learned counsel appearing for the opposite party Nos.1 to 4 and Mr. Sagar Kumar, learned counsel appearing for the opposite party Nos.5 to 6. 2. The co-ordinate Bench of this Court has dispensed with the notice upon opposite party Nos.7 to 12 in view of the fact that they are said to be the proforma opposite parties. 3. This petition has been filed under Article 227 of the Constitution of India for setting aside of the order dated 08.04.2024 passed by learned Sr. Civil Judge-II (Sr. Division), Dumka in connection with Original Suit No.15 of 2019 by which the learned Court has been pleased to reject the petition filed by the petitioner under Order 6 Rule 17 of CPC for amendment. 4. Mr. Onkar Nath Tiwary, learned counsel appearing for the petitioners submits that the Original Suit No.15 of 2019 was instituted for permanent injunction restraining the defendants from illegally, unlawfully unauthorizedly and forcibly disposing the plaintiffs name from the Schedule ‘B’ i.e. suit property. He submits that the defendants have appeared on notice and filed their written statement and in the meantime a petition under Order 6 Rule 17 of CPC for amendment was filed by the petitioner herein and amendment was sought in the prayer portion by inserting a few words and the line “for the cancellation of aforesaid sale deed” in the body of the plaint as follows :- (I) That in eight line at page No.4 of the plaint, after the words “suit property” and before the word “suit value” the word “and for the cancellation of two sale deed No.440 of 2016 and 444 of 2016 be added. (II) That in the last line of paragraph No.12 of the plaint after word “the plaintiff” the word “so both the sale deed No.440 of 2016 and 444 of 2016 are liable to be cancelled and proforma defendant No.6 is not the owner of suit property rather the same stood recorded in the name of Bajnath Lath as he is the owner”. (III) That the relief portion after para – a sub para no. “a” that a decree for cancellation of the registered sale deed No.440 for 2016 and 444 of 2016 be also passed in favour of the plaintiff. (III) That the relief portion after para – a sub para no. “a” that a decree for cancellation of the registered sale deed No.440 for 2016 and 444 of 2016 be also passed in favour of the plaintiff. (IV) That in relief portion another Para No.a2 be substituted as that a decree for confirmation of possession be also passed in favour of the plaintiffs and against the defendants in respect of tenanted premises of the plaintiffs. Therefore, prayed to allow the said amendment petition. He further submits that by the impugned order, the learned Court has rejected the same petition without considering the parameters of Order 6 Rule 17 of CPC. He then submits that the suit premises was sold by defendant No.6 to defendant Nos.1, 2, 3 and 4 and in view of that the petition was filed and even if the petitioners are the tenant he has got right to challenge the same. He submits that the law is well settled with regard to the amendment petition and the Courts are very lenient in allowing the formal amendment. On this ground, he submits that the same may kindly be set aside. 5. On the other hand, Mr. Rishav Kumar, learned counsel appearing for the opposite party Nos.1 to 4 submits that the suit was for permanent injunction instituted by the petitioners herein, who is the tenant in the suit premises. He submits that it was in the knowledge of the petitioners of selling about the sale deeds which has been disclosed in the plaint and even the deed number and date of registration is also disclosed and further the certified copy has been obtained on 26.04.2019 in spite of that the prayer in the main suit was not there and the amendment was sought after three years. He submits that the suit was instituted in the year 2019 whereas amendment petition was filed on 29.09.2023. He further submits in view of this fact itself the learned Court has rightly passed the order and if the said prayer is allowed the entire nature of the suit will change. He submits that the suit was instituted in the year 2019 whereas amendment petition was filed on 29.09.2023. He further submits in view of this fact itself the learned Court has rightly passed the order and if the said prayer is allowed the entire nature of the suit will change. He draws the attention of the Court and submits that the PW-1 and PW-3 who have also happened to be tenant in the said premises have admitted the fact that the petitioners are also a tenant in the said suit property and the said proceeding is going on and three plaintiff witnesses have already been examined. He relied in the judgment of Hon’ble Supreme Court in the case of Basavaraj versus Indira and Others reported in (2024) 3 SCC 705 , wherein at paragraph Nos.10, 11, 12, 13 and 16 it has been held as under :- 10. Proviso to Order VI Rule 17 CPC provides 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. In the case in hand, this is not even the pleaded case of respondents No. 1 and 2 before the Trial Court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. All what was pleaded was oversight. The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of the respondents No. 1 and 2/plaintiffs. 11. The relevant paragraphs of the application seeking amendment of the plaint are reproduced hereunder: “2. That, due to over sight and by mistake the Plaintiff was unable to sought relief declaration of decree as null and void and unable to pay required court fee some unavoidable circumstances and the proposed amendment is very essential for deciding the matter in dispute. 3. xxx 4. That, due to over sight and by mistake the Plaintiff was unable to sought relief declaration of decree as null and void and unable to pay required court fee some unavoidable circumstances and the proposed amendment is very essential for deciding the matter in dispute. 3. xxx 4. That, if the proposed amendment is allowed no prejudice will be cause to the other side, on the other hand if it is not allowed then the deponent will be put to great loss and will also leads multiplicity of litigation’s. Hence it is just and proper to allow the proposed amendment to meet the ends of justice.”(sic) 12. This Court in M. Revanna v. Anjanamma (Dead) by legal representatives and others11 opined that an application for amendment may be rejected if it seeks to introduce totally different, new and inconsistent case or changes the fundamental character of the suit. Order VI Rule 17 C.P.C. prevents an application for amendment after the trial has commenced unless the Court comes to the conclusion that despite due diligence the party could not have raised the issue. The burden is on the party seeking amendment after commencement of trial to show that in spite of due diligence such amendment could not be sought earlier. It is not a matter of right. Paragraph No. 7 thereof is extracted below: “7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the (2019) 4 SCC 332 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.” (emphasis supplied) 13. Initially, the suit was filed for partition and separate possession. By way of amendment, relief of declaration of the compromise decree being null and void was also sought. The same would certainly change the nature of the suit, which may be impermissible 16 . In the case in hand, the compromise decree was passed on 14.10.2004 in which the plaintiffs were party. The application for amendment of the plaint was filed on 08.02.2010 i.e. 5 years and 03 months after passing of the compromise decree, which is sought to be challenged by way of amendment. The limitation for challenging any decree is three years (Reference can be made to Article 59 in Part-IV of the Schedule attached to the Limitation Act, 1963). A fresh suit to challenge the same may not be maintainable. Meaning thereby, the relief sought by way of amendment was time barred. As with the passage of time, right had accrued in favour of the appellant with reference to challenge to the compromise decree, the same cannot be taken away. In case the amendment in the plaint is allowed, this will certainly cause prejudice to the appellant. What cannot be done directly, cannot be allowed to be done indirectly. 6. Relying on the above judgment, he submits that even the due diligence is not disclosed and in view of that the learned Court has rightly rejected the said petition. 7. In view of above submission of learned counsel appearing for the parties, the Court has gone through the materials on record and finds that admittedly the said suit was instituted by the petitioners herein, who said to be the tenant in the suit premises for permanent injunction. 7. In view of above submission of learned counsel appearing for the parties, the Court has gone through the materials on record and finds that admittedly the said suit was instituted by the petitioners herein, who said to be the tenant in the suit premises for permanent injunction. Defendants have appeared and filed written statement and thereafter the petition under Order 6 Rule 17 of CPC has been filed for the aforesaid amendment. 8. Looking into the amendment sought, it transpires that admission made in the suit by way of amendment new fact has been tried to be inserted by the said amendment which will certainly change the nature of the suit. Admittedly the petitioners herein are the tenant in the said premises and the said premises has already been sold by defendant No.6 in favour of defendant Nos.1, 2, 3 and 4 and the PW – 1 and PW – 3 have admitted before the learned Court in their evidence, who said to be also tenant, that petitioners are the tenant. 9. Further, after three years the said amendment has been filed from the knowledge of the sale deed and what is the locus of the petitioners who happened to be the tenant to challenge the sale deed is not disclosed in the petition meant for amendment and in view of that the tenant has no locus to challenge the validity of the sale deed which his landlord executes in favour of another person. On the execution of the sale deed only the landlord changes and not the rights and obligations under the lease and in view of that the Court finds that there is no merit in the petition and the learned Court has rightly passed the order, as such this petition is dismissed. 10. Pending petition, if any, is also disposed of.