Parmeshwar Singh & Ors. v. Kedar Singh

of plaintiff is also forged. This case related to Partition Suit No. 289 of 2002 where the petitioners are the plaintiffs. The defendants appeared in the suit and filed written statement at least three years before filing of the amendment petition. In the written statement, the defendants Patna High Court CWJC No.3355 of 2012 (3) dt.08-05-2012 mentioned that the partition had already taken place vide partition deed dated 11th December 1991 and 31st March 1993 where the signature of the plaintiff is appearing. Admittedly after three years, amendment petition was filed for addition of relief vide relief No.1(k) stating therein that partition deed dated 11th December 1991 ands 31st March 1993 are forged and fabricated documents and the same cannot be acted upon secondly the signature of plaintiff is also forged and fabricated. Defendants filed a rejoinder stating therein that the relief that has been sought for by amendment petition by way of additional relief is barred by limitation and that too when the trial has already commenced and witnesses from the side of plaintiff have already been examined. The court below considered the point of limitation and refused to allow the amendment on the ground that the plaintiff had got the knowledge of the aforesaid deed of partition before filing of the suit as it is apparent from order of Circle Officer dated 2.5.1995. Learned counsel for the petitioners submits that this finding of the court below that he plaintiff had knowledge about the deed of partition is not correct. Only the plaintiff could know about the purported deed when the same has been mentioned in the written statement. He further submits that of course the copy of written statement was served on the counsel for the defendants, Patna High Court CWJC No.3355 of 2012 (3) dt.08-05-2012 but, in fact, the defendants could know actually much after filing of the written statement. When they could know about it, instantly they filed the amendment petition seeking relief through amendment petition which was refused. In support of his contention, learned counsel for the petitioners relied on the judgment reported in 2003 (2) PLJR 147 (Suresh Lal Srivastava Vs. Raghunath Srivastava) Another point that the petitioners have raised is that as it is not changing the nature of the suit and as such the court below committed error in refusing amendment petition and in support of the same, relied on a judgment reported in 2005(4) PLJR 737 (Shiv Gopal Sah v. Sita Ram Saraugi. So far the second point raised by the petitioner, court below has not rejected the amendment petition on the ground of changing the nature of the suit. It only confines the adjudication that the relief sought for is barred by limitation. The present case is arising from a partition suit and admittedly the written statement was filed much before filing of the amendment petition, at least there is a gap of more than three years. Admittedly on the day of filing of amendment petition, the petitioners could not have sought relief for declaration that deed portion is forged and fabricated by filing a fresh suit as it was barred by limitation. It is well known principle that when a thing Patna High Court CWJC No.3355 of 2012 (3) dt.08-05-2012 cannot be done directly, it cannot be allowed indirectly. In this case, petitioners want that they may be allowed to challenge the deed of partition by making addition in the relief portion of suit. This Court in a case reported in 2003(2) PLJR 146 (Suresh Lal Srivastava v. Raghunath Srivastava) has allowed the amendment on the ground of subsequential and new cause of action. In that case, the facts were quite different as there was a new cause of action and, as such, the Court has allowed the amendment holding that the same is not barred by Limitation. The Hon’ble Supreme Court in a case reported in 1996 SC 2358 (Radhika Devi .V. Bajrangi Singh) while dealing with the same point held that if a party wants to challenge a deed and if the same has mentioned in the written statement and the amendment cannot be allowed after three years from the date of service of written statement where statement in regard deed has been mentioned. Counsel for the petitioner relied on a judgment of this Court reported in 2006 (2) PLJR 547 Mukti Narain Prasad v. Sri Man Narain Sharan which is not applicable to the facts of the present case. There facts and situation was quite different in Mukti Narain case (supra) where the issue was not for declaring any deed to be null and void and not binding. However, this case has not Patna High Court CWJC No.3355 of 2012 (3) dt.08-05-2012 considered the earlier judgment of Hon’ble Supreme Court reported in 1996 SC 2358 (Supra). Recently, the Hon’ble Supreme Court in a case reported in 2011(12) SCC 268 (State of M.P. v. Union of India has dealt with under what circumstances the amendment can be allowed in Para-10 the court has held as follows: “On critically analyzing both the English and Indian cases some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for 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 the proposed amendment constitutionally or fundamentally changes the nature and character of the case and (6) as a general rule, the court should decline Patna High Court CWJC No.3355 of 2012 (3) dt.08-05-2012 amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.” Item No.6 itself shows if amendment is barred by limitation on the date of filing of amendment petition and the Court should decline the amendment. In this view of the matter, as the amendment whereby petitioners want to add the relief is barred by limitation and as such cannot be allowed. This Court does not find any illegality in the order impugned. This petition is, accordingly, dismissed. Jay/- (Shivaji Pandey, J)