Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18315 of 2012 ====================================================== Mohan Prasad Son Of Late Mahavir Prasad Swarnkar Resident Of Mohalla - Khandakpar, P.S. - Bihar Sharif, District - Nalanda .... .... Petitioner/s Versus 1. Subhash Kumar Son Of Late Sheo Kumar Prasad Resident Of Mohalla - Alinagar, P.S. - Biharsharif, District - Nalanda 2. Sharda Devi Wife Of Late Sheo Kumar Prasad Resident Of Mohalla - Alinagar, P.S. - Biharsharif, District - Nalanda 3. Usha Kumari Daughter Of Late Sheo Kumar Prasad And Wife Of Rajpal Prasad Resident Of Mohalla - Alinagar, P.S. - Biharsharif, District - Nalanda 4. Sunita Gupta Daughter Of Late Sheo Kumar Prasad And Wife Of Surendra Prasad Resident Of Mohalla - Alinagar, P.S. - Biharsharif, District - Nalanda 5. Sheema Kumari Daughter Of Late Sheo Kumar Prasad And Wife Of Surendra Prasad Resident Of Mohalla - Alinagar, P.S. - Biharsharif, District - Nalanda 6. Shandhya Gupta Daughter Of Late Sheo Kumar Prasad And Wife Of Pashupati Nath Resident Of Mohalla - Alinagar, P.S. - Biharsharif, District - Nalanda .... .... Respondent/s ====================================================== Appearance : For the Petitioner : Mr. Birju Prasad, Advocate For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER 3 01-11-2013 Heard learned counsel for the petitioner. The present application under Article 227 of the Constitution of India is directed against the order dated 25.5.2012 passed in Eviction Suit No. 20 of 1999 by which the Judicial Magistrate Ist Class-cum-Additional Munsif-7, Biharsharif, Nalanda, has rejected the petition dated 30.3.2012 filed by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure
Facts
Patna High Court CWJC No.18315 of 2012 (3) dt.01-11-2013 2/6 (hereinafter referred to as „the Code‟) for amendment of his written statement. The petitioner is the defendant in Eviction Suit No. 20 of 1999 which was filed by the father of Respondent No. 1. The ground taken was that the premises was required for starting business by the Respondent No. 1 and also for recovery of rent. The relationship of tenant and landlord was not denied by the petitioner. Learned counsel for the petitioner submits that the plaintiff namely Sheo Kumar Prasad died during the pendency of the suit on 27.9.2010 and was substituted by his remaining heirs namely Respondent Nos. 2 to 6 on 29.10.2010. It is submitted that in the written statement filed initially by the petitioner, a statement was made that Respondent No. 1 for whom the premises, occupied by the petitioner was sought to be vacated, was already in business with his father (plaintiff). Upon the death of the sole plaintiff, an amendment of the written statement of the defendant (petitioner) was sought that Respondent No. 1 was now the sole heir who was running the business of late plaintiff, that is, his father. It is submitted that the same was rejected on an erroneous ground that earlier on 10.7.2006 the amendment has been allowed, which is factually incorrect inasmuch as the plaintiff died only in Patna High Court CWJC No.18315 of 2012 (3) dt.01-11-2013 3/6 September, 2010 and thus for the present amendment, there could not have been an application earlier in the year 2006. Learned counsel further submits that the amendment was formal in nature as it did not change the nature of the suit and that the law also permits that amendment can be sought and allowed at any stage and thus, according to him, the application filed by the petitioner under Order 6 Rule 17 of the Code ought to have been allowed.
Legal Reasoning
of this Court in the case of Sunil Mahto v. Parwati Devi reported in 2004(3) PLJR 220 and also in the case of Ashok Kumar Prasad v. Subidh Kumar Jain reported in 2004(4) PLJR 204. Upon considering the submission of the learned counsel for the petitioner, this Court finds that the suit for eviction is of the year 1999 and is still pending. Further the cause of action, if any, for seeking such amendment arose on 27.9.2010/29.10.2010 upon the death/substitution of the plaintiff, but the petition seeking amendment was made only on 30.3.2012, that is, after one year five months of the cause of action having arisen. In this connection it would be relevant to refer to the provision of Order 6 Rule 17 of the Code which reads as under :- “ 17. Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, Patna High Court CWJC No.18315 of 2012 (3) dt.01-11-2013 4/6 and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties : Provided for that no amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. ” application This Court in the present case would like to emphasize on the proviso which stipulates that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In the present case the delay of one year five months in seeking the amendment cannot be held to be one where the petitioner after due diligence could not seek amendment earlier and soon after the cause of action had arisen. The decision relied upon by the learned counsel for the petitioner in the case of Sunil Mahto (supra) as well as Ashok Kumar Prasad (supra) are not relevant to the facts and circumstances of the present case inasmuch as in the case of Sunil Mahto (supra) the amendment sought for was due to the reason that impleadment of a party which had produced sale deed which the plaintiff sought to Patna High Court CWJC No.18315 of 2012 (3) dt.01-11-2013 5/6 challenge through amendment was made only later on. In the case of Ashok Kumar Prasad (supra), the fact was that within one month of the party having been impleaded, the amendment was sought. With regard to the other issues that there is no limitation prescribed for seeking amendment or that amendment should be allowed, the same are not relevant in the present case. Further, the point raised by the petitioner that the nature of the suit shall not change is also misplaced for the reason that the late father of the Respondent No. 1 had left behind five other heirs who were co-sharers and thus the shop which was being run by the father of the Respondent No. 1 (plaintiff), upon his death devolved upon all the co-sharers and there was also a specific statement in the rejoinder filed by the plaintiff in the suit to this effect. Thus, in the opinion of this Court, the nature of the suit would change as a completely new defence would have been set up by the petitioner which in effect would have caused the suit to be further delayed as the party would have a right to re-agitate the issue by adducing fresh evidence or recalling the witnesses who had already been examined. As stated earlier, the suit for eviction being of the year 1999, and the petitioner being the defendant- tenant, he cannot be allowed to take shelter on some technicality to prolong the suit for as long as he may desire. Patna High Court CWJC No.18315 of 2012 (3) dt.01-11-2013 6/6 For the reasons aforesaid, this Court does not find any merit in the application and the same stands dismissed. The court below is further directed to conclude the trial and pass final judgment latest within a period of six months from the date of production/receipt of a copy of this order before it. It goes without saying that all the points available to the petitioner may be raised at the time of the argument, and the court shall consider the same in accordance with law. The order be communicated to the court below through Fax also at the cost of the petitioner. (Ahsanuddin Amanullah, J) sudip/-
Arguments
For such proposition learned counsel has relied upon the decision