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2025 DIGILAW 962 (JHR)

Kole Oraon S/o Late Jayra Oraon v. Guha Oraon

2025-03-24

SANJAY KUMAR DWIVEDI

body2025
JUDGMENT : SANJAY KUMAR DWIVEDI , J. 1. Heard Mr. Atanu Banerjee, learned counsel appearing for the petitioners, Mr. Pratyush Kumar, learned counsel appearing for the O.P. Nos. 1 to 3 and Mr. Ankit Kumar, learned A.C. to S.C.-I, appearing for the O.P. No. 4, who is Deputy Commissioner, Lohardaga. 2. This petition has been filed under Article 227 of the Constitution of India, wherein prayer has been made for setting aside the order dated 30.09.2023, passed in Original Suit No. 18 of 2017 by the learned Civil Judge (Sr. Div)-II, Lohardaga, whereby, Misc. Civil Application No. 75 of 2023, filed on behalf of the plaintiffs dated 18.09.2023 under Order-VI, Rule-17 read with Section 151 CPC has been allowed by the learned court. 3. Learned counsel appearing for the petitioners submits that plaintiffs/opposite parties Guha Oraon and others filed Original Title Suit No. 52 of 2016 against the petitioners/defendants, which has been withdrawn and thereafter the said plaintiffs have instituted Original Suit No. 18 of 2017 against Kole Oraon and two others, who are the petitioners herein and the Deputy Commissioner, Lohardaga for declaration of their right, title interest and possession over the suit land of R.S. Khata No. 65 and 126 of village-Kachmachi, Lohardaga and half share of defendant Nos. 1, 2 and 3 over the suit land of R.S. Khata No. 123. He submits that the petitioners/defendants, after their appearance, filed their written statement on 09.05.2019. He further submits that the amendment petition was filed and objection to that effect has been filed on 21.08.2020, however, the learned court has been pleased to allow the same by the order dated 04.03.2021, contained in Annexure-4 on the cost of Rs. 500/-. He then submits that thereafter the suit proceeded and the present stage of the suit is at the argument stage and at that stage, another amendment petition was filed under Order-VI, Rule-17 read with Section 151 CPC, which has been allowed by the learned court by order dated 30.09.2023. He draws the attention of the court to the amendment petition filed by the plaintiffs and submits that so many amendments have been sought to be made and that has been allowed by the learned court, which amounts to change the nature of the original suit. He draws the attention of the court to the amendment petition filed by the plaintiffs and submits that so many amendments have been sought to be made and that has been allowed by the learned court, which amounts to change the nature of the original suit. He submits that earlier also the amendment was allowed and at the later stage, that petition has been filed and the learned court has further allowed the same, that too in absence of any due diligence and in view of that learned court has wrongly passed the said order. He further submits that there are parameters of allowing the amendment petition and at the belated staged, when the suit is at the stage of argument, such order cannot be passed. In view of the above, learned counsel appearing for the petitioners submits that the prejudice has been caused to the petitioners/defendants. 4. Learned counsel appearing for the petitioners has relied in the case of Basavaraj vs. Indira & Ors., (2024) 2 SCR 935 and he refers to Para-8 of the said judgment, which reads as under:- “8. 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. 8.1. 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.) 5. Mr. Pratyush Kumar, learned counsel appearing for the O.P. Nos. 1 to 3 has opposed the prayer and submits that the learned court has rightly held that the amendment, sought for, is formal in nature and that is necessary for effectively deciding the original suit. By way of referring the amended plaint, he submits that only new khata number has been inserted by way of certain amendment and even some of khata numbers have been deleted and certain area has been changed and foundation of that is already there in the plaint. He further submits that in view of the above, the learned court has rightly passed the said order. He submits that only on the ground of delay, the amendment cannot be thrown away that view has been consistently taken by the Hon’ble Supreme Court as well as the High Courts. He further submits that earlier the genealogy was already allowed by the earlier amendment, however, in the present amendment, the genealogy has not been tried to be changed. He relied in the case of Surender Kumar Sharma vs. Makhan Singh, (2009) 10 SCC 626 , wherein it has been held that the amendment can be allowed at the belated stage also and that needs to be decided seeing whether by allowing the amendment the real controversy between the parties may be resolved or not and that has been made in paragraph No. 5 of the said judgment which is as under:- “5. As noted herein-earlier, the prayer for amendment was refused by the High Court on two grounds. As noted herein-earlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment.” 6. Relying on the above judgment, he submits that in absence of any evidence that the nature of the suit will be changed, at any stage to decide the lis, amendment can be allowed. He further submits that the learned court has allowed the said amendment at the cost of Rs.500/-. 7. Learned counsel appearing for the O.P. Nos. 1 to 3 submits that in light of the recent judgment of Hon’ble Supreme Court in the case of Life Insurance Corporation of India vs. Sanjeev Builders Private limited & Anr., (2022) 0 Supreme (SC) 864 and he refers to para-70 and submits that in that para several guidelines have been made for allowing the amendment petition, which is reproduced hereinbelow:- “70. Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). (iv) A prayer for amendment is generally required to be allowed unless (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. (xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897). 8. Relying on the above judgment, he submits that there is no illegality in the impugned order and this petition may kindly be dismissed. He further submits that in appropriate cases, even at the appellate stage, the amendments are being allowed. 9. Learned counsel appearing for the O.P. No. 4 (The Deputy Commissioner, Lohardaga) has adopted the argument of Mr. Pratyush Kumar, learned counsel, who is appearing for the O.P. Nos. 1 to 3. 10. In view of the above submissions of learned counsel appearing for the respective parties, the court has gone through the materials on record including the impugned order as well as the pleadings. Pratyush Kumar, learned counsel, who is appearing for the O.P. Nos. 1 to 3. 10. In view of the above submissions of learned counsel appearing for the respective parties, the court has gone through the materials on record including the impugned order as well as the pleadings. It is an admitted position that one suit being Original Title Suit No. 52 of 2016 was withdrawn and thereafter the present suit being Original Suit No. 18 of 2017 has been instituted for declaration of the right, title, interest and possession and also for declaration of ½ share of the suit property. 11. Earlier the amendment petition was allowed by the order dated 04.03.2021, contained in Annexure-4 on the cost of Rs. 500/-, in which, the genealogy was also changed. Looking into the amendment petition, which has been brought on record, it transpires that new khata number have been allowed be to inserted in the plaint and some of the khata number has been allowed to be deleted as well as the area of the land in question and in the second amendment, the name of three persons have been deleted and the name of one person has been inserted on behalf of plaintiff in the schedule portion and in that background, the learned court has allowed the petition holding that this is a formal amendment and that will not change the nature of the suit. Thus, it appears that for deciding the lis, at once, the learned court has allowed the said amendment. 12. In the case of Life Insurance Corporation of India (supra), the Hon’ble Supreme Court has held that in dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs and further the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. 13. Further it is welled settled that the 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. 13. Further it is welled settled that the 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 mala fide or that by his blunder, he had caused injury to his opponent, which cannot be compensated for by an order of cost. Reference may be made to the case of Mahila Ramkali Devi vs. Nandram (Dead) through Legal Representatives, (2015) 13 SCC 132 . 14. In the case of Jai Jai Ram Manohar Lal vs. National Building Material Supply Gurgaon, (1969) 1 SCC 869 the Hon’ble Supreme Court has held that power to grant amendment to pleadings is intended to serve the needs of justice and is not governed by any such narrow or technical limitations. Merely on the ground of delay, the amendment cannot be refused when a specific finding of the learned court is there that that amendment can settle the lis at once and if that is the situation, to avoid the multiplicity of litigation, the learned court has rightly held the same and that fact has further been reiterated by the Hon’ble Supreme court in the case of Life Insurance Corporation of India (supra) that all amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. 15. So far as the judgment relied by the learned counsel appearing for the petitioners in the case of Basavaraj (supra), is concerned, this court is in agreement and the case law is required to be considered in the facts and circumstances of the each case. In that case, the Hon’ble Supreme court has found that if the amendment is allowed, prejudice will be caused to other side and in view of that the said order has been passed. 16. In that case, the Hon’ble Supreme court has found that if the amendment is allowed, prejudice will be caused to other side and in view of that the said order has been passed. 16. What has been discussed hereinabove, the prejudice will not be caused to the petitioners herein, in view of that the judgment relied by the learned counsel appearing for the petitioners is not helping the petitioners. 17. In view of the above facts, reasons and analysis, the court finds that no interference is required, however, the court finds that the rebuttal right of the petitioners/defendants have not been taken care of, as such, the order dated 30.09.2023, passed in Original Suit No. 18 of 2017 by the learned Civil Judge (Sr. Div)-II, Lohardaga, whereby, Misc. Civil Application No. 75 of 2023, is modified to the effect that the petitioners/defendants will be allowed to rebut the amended part of the plaint, if they may desire. 18. This petition is disposed of in view of the above terms.