Rameshwar Singh v. Ram Datta Singh & Ors.

All are presently resident of village Rasulpur, Tole Kedar Parsa, P.O. Chainwa, P.S. Rasulpur, District Saran. …..Defendants-Opposite Parties. ----------- For the Petitioner : Mr. R. S. Dwivedi, Advocate For Opposite Party no.1: Mr. Ramjee Sharma, Advocate 05/

02.07.2009 Heard learned counsel for the petitioner and learned counsel for opposite party no.1.

This civil revision has been filed by one of the defendants challenging order dated 10.10.2007, by which learned 5th Civil Judge, Senior Division, Saran at Chapra allowed the prayer for amendment of the plaint made by the plaintiffs in Title Suit No. 97 of 1986.

The aforesaid suit was filed by the plaintiffs- opposite parties first set for partition of their moiety share in the suit property and for other ancillary relief. The said suit was filed as far back as in the year 1986 and after much delay it reached the final stages and the evidence of the parties were closed in the year 2003 and the defendants were to start their arguments, but instead of starting his arguments, the defendant-petitioner filed a petition on

16.08.2004 for amendment of his written statement, which was rejected on 27.07.2005 by the learned trial court on the ground that it was filed at a very belated stage and would change the nature of the suit. The said order was challenged by the defendant-petitioner in Civil Revision No. 2068 of 2005, which was heard on 11.07.2006 (Annexure 3), whereafter a Bench of this Court found that even though the amendment had been sought at a belated stage, it was a 3 fit case in the interest of justice in which this amendment ought to have been allowed and the aforesaid order dated 27.07.2005 of the trial court was set aside and the said Civil Revision No. 2068 of 2005 was allowed with cost and with a liberty to the plaintiffs that consequent to the amendment of the written statement the plaintiffs would have a right of rebuttal leading fresh evidence or recalling witnesses already examined.

It transpires that even thereafter the hearing of the suit did not proceed and the plaintiffs-opposite parties filed a petition on 16.05.2007 for amendment of their plaint in view of the specific liberty given to them by the aforesaid order of this court. The learned trial court considered the entire matter and vide its order dated 10.10.2007, which is under challenge in this civil revision, came to the conclusion that the amendment petition filed by the plaintiffs was fit to be allowed, but on payment of cost of Rs.200.00 to the other side.

Although learned counsel for the petitioner raises an objection that the amendment sought by the plaintiffs is at a belated stage and would change the nature of the suit, but from the facts and circumstances of this case, it is quite apparent that it is due to the defendants that the suit, which was filed in the year 1986, has been delayed and the defendants themselves have not started their arguments although the evidence had been closed as far back as in the year 2003.

In the aforesaid circumstances, the defendants 4 cannot be allowed to raise such objection specially when while allowing the earlier petition of the defendant-petitioner this court vide order dated 11.07.2006 (Annexure 3) had specifically given the plaintiffs a right of rebuttal. Furthermore, from the amendment petition filed by the plaintiffs ( Annexure 4) it transpires that the plaintiffs had sought for adding such facts, which were necessitated due to the amendment of the defendants’ written statement.

In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned order of the learned trial court nor does it find any jurisdictional error in the same and, accordingly, this civil revision dismissed. However, if the plaintiffs are allowed to lead fresh evidence or recall witnesses, who had already been examined , the defendant-petitioner will be entitled to a chance of rebuttal confined only to the instant amendment of the plaint and to lead fresh evidence only with respect thereto.

Since, the suit, out of which this civil revision has arisen, is now 23 years old, the learned court below is directed to expedite its disposal without giving any unnecessary adjournment to any of the parties. MPS/ ( S. N. Hussain, J. )