Ramashis Tiwary v. Shri Nand Kishore Tiwary

plaintiff-petitioner purchased an area of 4 decimal of land in Plot No. 448(A), Khata No. 130, Mauza-Kamarji being the ancestral property of the defendant-respondent, vide registered sale deed dated 14.9.2009 executed by the defendant-respondent for himself as well as on behalf of his minor children in favour of plaintiff-petitioner. It is stated that the defendant dispossessed the plaintiff- petitioner from the land in question on 23.05.2010 Patna High Court CWJC No.13982 of 2012 (5) dt.22-05-2013 leading to filing of T.S. No. 188/2010 for declaration of valid title and for being put in physical possession upon the land.

Learned counsel for the petitioner invites attention to the written statement dated 28.10.2010 of the defendant-respondent (Annexure-2), according to para 8 of which the defendant executed the sale deed but the plaintiff failed to pay Rs. 1,00,000/- to the defendant. It is therefore submitted that the fact of execution of the sale deed was a clear admission by the defendant and it was only claimed that the plaintiff had failed to pay Rs. 1,00,000/- to the defendant. By the amendment petition dated 27.5.2011 (Annexure-5), however, the defendant- respondent sought to substitute the said para 8 of the written statement and withdraw his earlier admission of having executed the sale deed in the plaintiff-petitioner’s favour by introducing a new fact that the defendant- respondent had already sold the disputed property 3 years ago to Smt. Geeta Devi by virtue of registered sale deed dated 12.07.2007 and had put her in possession thereof, and that the plaintiff had got the same land registered in his favour during the period when the defendant-respondent was suffering from mental illness after kidnapping him when he was under intoxication. Amendment was also sought in para 11 of the written Patna High Court CWJC No.13982 of 2012 (5) dt.22-05-2013 statement to indicate that the land had been sold under registered sale deed no. 16770 dated 12.7.2007.

Learned counsel for the petitioner submits that the impugned order is not in accordance with law in the back drop of the fact and circumstances of the case. It is pointed out that a petition dated 2.12.2010 (Annexure-3) had been filed earlier by the defendant- respondent seeking the learned Court’s permission for filing fresh written statement and for declaring the written statement dated 28.10.2010 as not being the written statement on behalf of the defendant. Such prayer was made on the ground that the written statement had been filed under the signature of Mr. Manjit Kumar, advocate who was a practitioner on criminal side. It is stated that such petition having been rejected by the learned Court in its order dated 27.4.2011, the learned Court ought not to have allowed the prayer for amendment of the written statement under Order 6 Rule 17 C.P.C.

It further submitted amendment petition was not capable of being allowed being vague and lacking in material particulars such as the dates when the defendant-respondent claims to have been under psychiatric treatment, as also the absence of any details whatsoever with regard to the person to whom the land was claimed to have been sold under Deed no. Patna High Court CWJC No.13982 of 2012 (5) dt.22-05-2013 16770 dated 12.07.2007.

Learned counsel for the petitioner relies on the decision of this Court in 2007 (4) PLJR 293 (Ramayan Mahto Vs. Mahant Bhagwandas) for the proposition that amendment of written statement cannot be allowed if it seeks to displace the plaintiff from the admission made in the written statement. He also relies on (2000) 1 SCC 712 (B.K. Narayan Pillai Vs. Parmeswaran Pillai) to the effect, inter alia, that by an amendment petition, any admission made in favour of the plaintiff should not be withdrawn and the proposed amendment should not result in injustice to the other side.

Learned counsel for the defendant-respondent, on the other hand, has filed a counter affidavit in support of the impugned order, submitting that the same is in accordance with law and requires no interference.

It is pointed out therein that even though the petitioner’s earlier petition dated 2.12.2010 (Annexure-3) for permission to file a fresh written statement was no doubt rejected by the order dated 27.4.2011 (Annexure-A to the counter affidavit), but a perusal thereof would show that the rejection was on ground that there was no provision in the C.P.C. for filing a fresh written statement rather there was provision for amendment thereof. It is therefore submitted that the defendant respondent was Patna High Court CWJC No.13982 of 2012 (5) dt.22-05-2013 thus given liberty in view of the statutory provision for amendment of pleadings, and as such the rejection order would therefore not stand in the way of filing the amendment petition.

It is further submitted on behalf of the defendant-respondent that the written statement had tobe filed under the signature of Sri Manjit Kumar, advocate in order to save limitation under Order 8 Rule 1 C.P.C., withdrawal of which was sought immediately thereafter terms of petition dated 2.12.2010 (Annexure-3). It submitted similar circumstances amendment of written statement taking a new stand was held permissible in AIR 2007 NOC 857 (P & H) and AIR 2007 NOC 1920 (ALL).

Learned counsel the defendant- respondent also submits on the basis of the sale deed no. 17610 as well as sale deed no. 16770 that the boundaries of the land enumerated therein would go to show that the entire land had already been sold to Smt. Geeta Devi.

In the rejoinder filed by the petitioner in reply to the counter affidavit, the petitioner has disputed the stand of the defendant-respondent and has also enclosed a copy of the sale deed no. 16770 dated 12.7.2007.

Having heard the rival submissions of the parties and upon going through the materials on record Patna High Court CWJC No.13982 of 2012 (5) dt.22-05-2013 this Court is of the view that as regards maintainability of the amendment petition, the same was maintainable and the submission on behalf of the learned counsel for the petitioner to the contrary in the light of the order dated

27.4.2011 (Annexure-A to the counter affidavit) cannot be accepted. A perusal of the said order clearly shows the circumstances in which the defendant-respondent’s petition dated 2.12.2010 was rejected, the main reason being the absence of any statutory provision for allowing a fresh written statement to be filed. The learned Court also duly indicated that provisions existed for amendment of the written statement instead, and thus the order dated 27.4.2011 cannot be treated as creating a bar to filing of an amendment petition in terms of Order 6 Rule 17 C.P.C.

This Court also finds on a perusal of the impugned order that the learned Court has considered the matter in detail with due application of mind. The learned Court has duly taken note of the petitioner’s submissions to the effect that the amendment petition was not maintainable as it could not be said that the Court had granted liberty to file the same while rejecting the earlier petition dated 2.12.2010 by its order dated

27.04.2011; and that the amendment petition sought to withdraw the admission contained the written Patna High Court CWJC No.13982 of 2012 (5) dt.22-05-2013 statement, which was impermissible. The learned Court has observed that after filing of the written statement dated 28.10.2010, the defendant-respondent on the very next date fixed on 2.12.2012 filed the petition for withdrawal of the same and for permission to file a fresh written statement, whereafter on the next date fixed on

27.04.2011 the same was rejected on the ground that remedy by way of amendment petition was available. Significantly the learned Court has also taken note of the fact that the trial was at a very early stage where evidences had yet to commence and thus no prejudice would be caused to the plaintiff- petitioner who would have ample opportunity to adduce evidence on the written statement as amended. The learned Court has referred to the principles governing amendment of pleadings as laid down in (2008) 14 SCC 364 (Rajkumar Gurawara (Dead) Through LRS. Versus S.K. Sarwagi And Company Private Land & Anrs.).

It is well settled that while exercising jurisdiction under Article 227 of the Constitution of India this Court will not convert itself into a Court of Appeal or a Court of Error. As long as the view taken in the impugned order of the learned Appellate Court and the Sub-ordinate Court is one tenable in law, this Court will not interfere to substitute its own view. Patna High Court CWJC No.13982 of 2012 (5) dt.22-05-2013

In the above view of the matter, therefore, the impugned order cannot be said to suffer from any infirmity and this Court therefore refrains from interfering with the same on a petition filed under Article 227 of the Constitution of India.

The writ petition accordingly stands dismissed. Fahad. ( Vikash Jain, J. )