Shyam Sundar Agrawal v. Kailash Chandra Agrawal & Ors.

already been filed on behalf of the defendants. Issues are yet to be framed. The plaintiff seeks to amend paragraph 11 of the Patna High Court CWJC No.18975 of 2012 (4) dt.23-01-2013 2 plaint. Paragraph 11 of the plaint states that the father of the plaintiff had, by the earlier family arrangement, distributed the property of Schedule I of the plaint amongst the co-sharers on

5.3.1993. The proposed amendment is that the plaintiff wants to add to paragraph 11 that after distributing the lands to the co- sharers, the plaintiff’s father had reduced in writing on a separate sheet the land that he had distributed for the purposes of retaining it in his memory and had given a copy of the same to each of the co-sharers after obtaining their signatures. Learned counsel for the respondents vehemently opposes the writ application on the ground that according to them, they would be debarred from filing a partition suit and the petitioner is now trying to introduce a new story by stating that there was a written family arrangement signed by the parties. Learned counsel for the respondents for the purpose of substantiating his claims refers to the case of M/S. Revajeetu Builders and Developers Vs. M/S. Narayanaswamy and Sons reported in AIR 2009 SC (Supp.) 2897 wherein the Hon’ble Supreme Court has laid down six principles to be considered by the court for the purposes of allowing/rejecting the amendment petition. The six principles laid down are as follows :- (1) Whether the amendment sought imperative for Patna High Court CWJC No.18975 of 2012 (4) dt.23-01-2013 3 proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. Learned counsel for the respondents submits that the proposed amendment comes under the 6th principle which specifically debars the court to entertain amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. In this context, I may make it clear that the amendment sought to be made does not come in the way of claim of the petitioner that there was an oral partition. The only new Patna High Court CWJC No.18975 of 2012 (4) dt.23-01-2013 4 fact that he is introducing is that the oral partition was later on written down for the purposes of parties avoiding any further litigation with respect to the properties distributed. In this context, I may also refer to the pleading of the petitioner in the plaint which is that the court should declare that Schedule II properties are in possession of the plaintiff by way of family arrangement. Further a prayer has been made to restrain the defendants from interfering with the possession of the plaintiff and from alienating the suit property. In this context I may refer to the reliefs prayed for in the plaint. The first relief is for declaration of title and confirmation of possession with respect to the land which have been described in Schedule II of the plaint. There is also a prayer for injuncting the defendants from disturbing the possession and selling the suit land mentioned in the said Schedule II. It may be mentioned here that Schedule I of the plaint describes the entire land of the family and also specifies as to which of the land have been allotted to each of the co-sharers. Thus, it appears that no new fact has been stated. In fact, if the Schedule I lands and the alleged Yaaddashtnama do not tally, it may be a circumstance which may go against the plaintiff. Apart from which it would appear that the defendants have already filed their partition suit Patna High Court CWJC No.18975 of 2012 (4) dt.23-01-2013 5 being Partition Suit No. 364 of 2011 which is pending before the Subordinate Judge Ist, Siwan. It is submitted on behalf of the respondents that the petitioner is not appearing in the said partition suit. Learned counsel for the petitioner, on the other hand, submits that he undertakes to appear in the said partition suit. Having considered the pleadings and amendment sought for, this Court comes to a conclusion that the petitioner does not want to introduce any new case, or bars the respondents from filing a partition suit and it does not change the pleadings in any manner and as such the order impugned is set aside with the observation that the defendants-respondents would have a right to file additional written statement, if so advised. This writ application is allowed accordingly. Amin/- (Sheema Ali Khan, J)