Sudama Devi v. Ram Kumar Singh & Ors.

9. Srimati Sabnam Thakur W/O Anil Kumar Thakur, resident of Hakikatpur, P.O. & P.S. Bakhtiyarpur, District- Patna 10. Dr. Bibhuti Singh 11. Anil Singh 12. Pramod Kumar Sinha O.P. No. 10 to 12 are sons of Late Rameshwar Singh and resident of Bakhtiyarpur, P.S. and P.O- Bakhtiyarpur, District- Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Sidhendra Narayan Singh For the Respondent No. 9 : Mr. Surendra Kishore Thakur Mr. Brajesh Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 13 10-07-2013 Heard learned counsel for the petitioners and Learned counsel appearing on behalf of the respondents.

2. This is an application under Article 227 of the Constitution of India. The petitioner is aggrieved by an order dated

06.08.2009 passed by learned Sub-Judge-II, Barh, in Title Suit No. 48/90 whereby this application under Order VI Rule 17 of the Patna High Court CWJC No.8740 of 2011 (13) dt.10-07-2013 P2/5 Code of Civil Procedure dated 18.12.2006 has been rejected.

3. The substance of the argument is that the petitioners, who are the plaintiffs before the Court below, sought to incorporate in relief portion, a relief seeking confirmation of his possession over the suit property. In view of proposed amendment in relief, the petitioners also sought for permission to pay ad valorem Court fee.

4. It has been submitted on behalf of the petitioners that the amendment sought for, if allowed, would not have changed the nature of the suit and it was out of inadvertent mistake that such relief could not be prayed for at the time of filing of the plaint or even during the subsequent stage. He submits that the amendment sought for is with respect to relief only and such amendment should not have been refused on the ground of delay. He submits that no prejudice would have been caused to the other side had such amendment been allowed as grant of relief is dependent upon the pleadings and evidence already on record.

5. He submits that in support of the relief, with respect to which amendment has been sought for, no further evidence is required and undertakes on behalf of the petitioners / plaintiffs not to seek production of any further evidence in the said suit. Learned counsel has placed reliance on a judgment of this Court reported in 2012 (2) Civ. C.R. 180 (Pat.) (Mokhtar Ahmad and Patna High Court CWJC No.8740 of 2011 (13) dt.10-07-2013 P3/5 Ors. Vs. Aurangjeb Khan and Anr.) to contend that as the petitioner was not praying for amendment of the statement made in the plaint, the amendment should have been allowed since whether relief can be granted or not is a question that may be decided at the time of judgment and not at this stage.

6. Learned counsel appearing on behalf of the respondents on the other hand has strongly resisted the prayer and submits that at this stage when the evidence of the parties are closed and the matter is fixed for arguments, the Court below rightly rejected the amendment petition; the same being belated completely lacking in pleadings as to what prevented the plaintiff to take steps for such amendment at an earlier stage. He has relied upon a judgment of this Court reported in 2005(3) BBCJ 513 Smt. Lipika Gupta V. Partho Gupta.

7. I have perused the application field by the petitioners before the Court below under Order VI rule 17 of the Code of Civil Procedure. The only substantial amendment which the petitioner sought was with respect to his confirmation of possession over the suit land. This is not in dispute that in the plaint there is specific pleading claiming possession over the suit property. Having seen the proposed amendment, I am of the view that the same should not have been rejected by the Court below Patna High Court CWJC No.8740 of 2011 (13) dt.10-07-2013 P4/5 even at belated stage, keeping in view, the nature of amendment sought. Learned counsel for the petitioners is right in placing reliance upon judgment of this Court in case of Mokhtar Ahmad and Ors. Vs. Aurangjeb Khan and Anr. paragraph-5 of which reads as follows:- the court should not go “In Rajesh Kumar Aggarwal and others vs. K.K. Modi and others. (2006) 4 SCC 385, the Hon’ble Apex Court has held that while deciding an application under Order 6 Rule 17 of the Code of Civil Procedure correction or falsity of the case made in the amendment application nor recording finding on the merits of amendment. Therefore, the submission of the learned Counsel for the respondents that the prayer cannot be allowed is concerned, is a question to be decided ultimately at the time of hearing of the suit and not at this stage. So far submission that at belated stage the application has been made is concerned, also I find no force because in Revajeetu Builders and Developers vs. Narayanaswami and sons and others, (2009) 10 SCC 84 the Hon’ble Apex Court has held that the Courts have very wide discretion in the matter of amendment of pleadings. While deciding the applications for amendment the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments. Only because the application for amendment has been filed at belated stage the same cannot be rejected on the ground of delay. Since in the present case, the plaintiffs have prayed for amendment in the relief portion and there is no prayer that in support of the relief any further evidence is required, therefore, there is no question of prejudice to the opposite party arises.”

8. The order of this Court in case of Smt. Lipika Gupta Vs. Partho Gupta as relied upon by the learned counsel for the respondents will not have application in the present case as in that case the plaintiff wanted to amend pleadings by way of addition of Patna High Court CWJC No.8740 of 2011 (13) dt.10-07-2013 P5/5 a full paragraph therein.

9. In view of the above, this application is allowed. The impugned order dated 26.08.2009 passed by learned Sub-judge-II, Barh, in Title Suit No. 48 of 1990 is set aside. The amendment petition filed by the petitioner / plaintiff in the said title is allowed and they are directed to incorporate amendment in the plaint accordingly.

10. This will, however, be subject to payment of a cost of rupees five thousand to be paid to learned counsel for the respondents in the present case within three months from today.

11. It will be open to respondents / defendants to take steps in view of the amendment in the plaint as allowed by this Court. Needless to say that since the matter is concerned with amendment in the relief portion only, the final adjudication has to be done on the evidence already there on record, particularly in view of undertaking that the petitioner / plaintiff will not to produce any further evidence.

12. Since the suit is pending from the last twenty three years, it is expected that the Court below shall proceed for early disposal of the case. Saif/- (Chakradhari Sharan Singh, J.)