1 - Loknath died through Lrs. 1 .1. Smt. Sandhya Rani, aged 48 years v. • Mahadev S/o Mewal
Case Details
1 2025:CGHC:31638 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 156 of 2008 1 - Loknath died through Lrs. 1 .1. Smt. Sandhya Rani, aged 48 years, widow of Loknath Sahu. 1.2 Labhan Singh Sahu, aged 22 years, daughter of Loknath Sahu. 1.3 Lohit Kumar Sahu, aged 21 years, son of Loknath Sahu. 1.4 Lalas Sahu, aged 18 years, daughter of Loknath Sahu and 1.5. Lokshakti Sahu, aged 16 years, daughter of Loknath Sahu, (No.1.5 is s minor through natural guardian Smt. Sandhya Rani. All residents of Ward No10, Ganjpara, Mahasamund, District Mahasamund (XCG). ... Appellants. versus • Mahadev S/o Mewalala Caste Sahu Occup.Iron Merchant, Firm Ram Traders, Proprietor Mahadev Sahu, Permanent R/o Ward No.11, Mahatma Gandhi Ward, Main Road, Mahasamund, Ph. No.142/89 Ric Mahasamund ... Respondent. For Appellant. For Respondent : :
Legal Reasoning
Mr. H.B. Agrawal, Sr. Advocate with Ms. Sandhya Rao, Advocate. Mr. Vikash Pradhan, Advocate. (Hon’ble Mr. Justice Narendra Kumar Vyas) Judgment on Board (09-07-2025) 2 1. This is appellant/plaintiff’s First Appeal filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 9-5-2008 passed by the First Additional District Judge, Mahasamund in Civil Suit No. 8-A of 2007 by which the learned trial Court has not only dismissed the suit filed by the plaintiff as well as also rejected the application for amendment in the plaint vide order dated 1-5-2008 and also rejected the application filed under Order 14 Rule 5 of the CPC for framing of additional issues. 2. Brief facts reflected from the record are that; (A) The plaintiff filed suit for eviction of defendant and damages mainly contending that the plaintiff’s father late Sharda Prasad had purchased the land from Stridhan of his wife Bittan Bai, bearing Khasra No. 1964/2 and 98/2 admeasuring 2000 sq.ft., situated at south direction from Nehru Chowk to Gandhi Chowk (here-in-after- referred to as suit property) through registered sale deed dated 14-7-1958 in the name of his real uncle Kamla Prasad s/o. Bechu Sahu and since then he is in possession of the said land wherein a house has been constructed. (B) The plaintiff’s father Sharda Prasad has given the house on rent to his cousin sister namely Maity Bai who died issue-less in the year 1996 and her husband also expired in the year 1994. Thereafter, the son of her brother-in-law namely Phoolchand Sahu has given the possession to him after vacating the suit premises. Thereafter, it was given on rent to the defendant for use of the house as storage. He has also vacated the possession of the suit house on 31-12-2000 and it was given to the plaintiff. Thereafter, the suit house was given to his nephew Mahadev Sahu on rent to 3 use as godown from 1-4-2001 and he was paying the rent @ Rs.1000/- per month to the plaintiff without any difÏculty till 1st January, 2005. Thereafter, defendant Mahadev stopped paying the rent. It was revealed to the plaintiff that the defendant has recorded his name in the records maintained by the Municipal Corporation without giving any notice and has mutated the house in his name which has necessitated the plaintiff to file a suit for ejectment of defendant from the suit property. (C) The defendant has filed the written statement denying the averments made in the plaint mainly contending that the suit property belongs to Kamla Prasad who is owner of the suit property as it has been recorded in the name of Kamla Prasad through registered sale deed for consideration of Rs.7,500/-. It has also been contended that the deceased Maity Bai has executed a will on 19-11-1992 in favour of defendant and since then he is in possession of the suit property and accordingly after death of Maity Bai, he has mutated his name. It has also been contended that before filing of the suit no notice for ejectment has been given to him, as such the suit is not maintainable and prayed for dismissal of the suit. (D) On the pleadings of the parties, learned trial Court has framed five issues on 29-10-2017 and thereafter the case was fixed for recording of the evidence. Though the case was fixed for plaintiff’s evidence, the plaintiff moved an application on 4-4- 2008 mainly contending that the alleged will is false and fabricated one and on the basis of forged and fabricated will, the defendant is not entitled to record his name in the suit property and also clarified that how the suit property has been purchased 4 by him. He has also mentioned about the proceedings pending before the learned Civil Judge Class-1. (E) Apart from this application, the plaintiff has also moved an application for framing of additional issues. The said application was rejected by the learned trial Court vide order dated 14-3-2008 by recording its finding that the application was filed at belated stage and no justifiable reason has been assigned, but it has been filed just to drag the proceedings and accordingly with cost it has been dismissed. (F) From the order sheet of the suit it is quite vivid that the learned trial Court rejected the application filed under Order 6 Rule 17 of CPC vide its order dated 14-03-2008. Thereafter, the suit was fixed for recording of evidence of both parties on 19-3- 2008. Since application under Order 14 Rule 5 of CPC was pending before the trial Court which was also rejected vide order dated 19- 03-2008 thereafter, the suit was fixed on 25-3-2008 for plaintiff’s evidence. On 25-3-2008 the case was called by the learned District Judge Mahasamund and thereafter the matter was taken up for further proceeding on 4-4-2008. On 4-4-2008 the plaintiff again moved applications under Order 6 Rule 17 of the CPC, Order 6 Rule 9 of CPC and Order 7 Rule 8 of CPC. The same has been rejected vide order dated 25-4-2008 and thereafter the matter was taken up on 1-5-2008. The plaintiff has filed other applications under Order 14 Rule 5 CPC for framing of additional issues, Order 14 Rule 2 read with Section 151 of CPC for deciding the issue No. 4 as preliminary issue and Order 17 Rule 1 read with Section 151 of CPC for adjournment mainly contending that the suit was fixed for the first time for recording of evidence and the 5 witnesses could not appear on the said date for recording their evidence, as such adjournment was sought. Learned trial Court has rejected all the applications by recording its finding that earlier also the application filed by the plaintiff under Order 14 Rule 5 of CPC was rejected as such these applications are also deserve to be rejected. Learned trial Court while rejecting the prayer for adjournment has recorded its finding from the conduct of the plaintiff it is quite vivid that the plaintiff is not intended to lead evidence, therefore, the right of the plaintiff to lead evidence was closed and the matter was fixed for examination of defendant. Another application was filed by the plaintiff under Order 7 Rule 14 (4) of CPC for examination of defendant which has been rejected and the defendant's witness was examined. On 5-5-2008 another application for amendment has been submitted by the plaintiff but the learned trial Court has rejected the same on the count that earlier application for amendment has also been rejected. Thereafter, vide impugned judgment and decree dated 9-5-2008 the suit has been dismissed by the learned trial Court. Being aggrieved with the dismissal of the suit, the plaintiff has preferred First Appeal under Section 96 of the CPC before this Court. 3. Learned Senior Advocate for the appellants/plaintiff would submit that the learned trial Court has committed illegality in dismissing the applications mechanically without considering the relevancy. He would further submit that once the plea of will has been taken, then it is incumbent upon the trial Court to frame issues on the validity of the will irrespective of the fact that any party has raised any objection or not with regard to genuineness of the will. 6 He would further submit that in written statement the plea of will has been taken by the defendant which has necessitated the plaintiff to amend the pleadings and without examining the relevancy on the count of delay, the application has been rejected causing adverse effect to the interest of the plaintiff. He would further submit that the learned trial Court has not given proper opportunity of hearing to the plaintiff to lead evidence. In support of his submissions, he has referred to the judgments of Hon’ble Supreme Court in the case of Baldev Singh and others vs. Manohar Singh and another, reported in (2006) 6 SCC 498 wherein Hon’ble Supreme Court held that the Courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side; and further in the case of Revajeetu Builders and Developers vs. Narayanaswamy and sons and others, reported in (2009) 10 SCC 84 wherein Hon’ble Supreme Court has held that the Courts have very wide discretion in the matter of amendment of pleadings but court’s powers must be exercised judiciously and with great care. While deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/ or dishonest amendments. Thus, he would pray for setting aside the impugned judgment and decree and also orders rejecting the applications filed under Order 6 Rule 17 of the CPC,, Order 6 Rule 9 of CPC, Order 7 Rule 8 of CPC, Order 7 Rule 14 of CPC, Order 14 Rule 2 of CPC and Order 14 Rule 5 of CPC by the learned trial Court. 4. Per contra, learned counsel for the respondent would submit that 7 the learned trial Court has rightly rejected the applications as belated one as trial has already begun, therefore, in view of the rider conferred under Order 6 Rule 17 of CPC, the finding of the learned trial Court cannot be said to be illegal or to suffer from any perversity which warrants interference by this Court. He would further submit that so far as merit of the case is concerned, the plaintiff is unable to plead and prove the evidence, whereas, burden lies upon the plaintiff to prove his pleadings which he has not done. As such, the trial Court has not committed any illegality in dismissing the suit. 5. I have heard learned counsel for the parties, perused the record of the court below with utmost satisfaction and considered rival contentions of the parties. 6. From the aforesaid submissions made by the parties, the point emerged for consideration of this Court is: “Whether the learned trial Court was justified in dismissing the application filed under Order 6 Rule 17 of the CPC and Order 5 Rule 14 of the CPC?'. 7. To appreciate this point, it is expedient for this Court to consider the law on the subject of amendment. Hon'ble Supreme Court time and again has held that though the trial Court should not consider the amendment when the trial has begun, but before declining the prayer for amendment it is incumbent upon the trial Court to examine whether the said amendment is just and proper for adjudication of the case, whether it is relevant for deciding the controversy between the parties or not?. Merely on the ground of delay, application for amendment cannot be rejected. This issue 8 has come up for consideration before the Hon’ble Supreme Court in the case of Dinesh Goyal @ Pappu vs. Suman Agrawal (Bindal) & others (SLP (Civil) No. 30324 / 2019) 2024 INSC 726 wherein Hon’ble Supreme Court has held as under. “11. At this juncture, before proceeding to the merits of the case, let us consider the law relating to the amendments of pleadings. 11.1 The settled rule is that the Courts should adopt a liberal approach in granting leave to amend pleadings, however, the same cannot be in contravention of the statutory boundaries placed on such power. In North Eastern Railway it was held Gorakhpur v. Bhagwan Das6 Administration, as under: “16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions : (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. [Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166.]” questions 11..2 Over the years, through numerous judicial precedents certain factors have been outlined for the application of Order VI Rule 17. Recently, this Court in Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd. & Anr.7, after considering numerous precedents in regard to the amendment of pleadings, culled out certain principles:- (i) All amendments are to be allowed which are necessary for determining the real 9 question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (ii) In the following scenario such applications should be ordinarily allowed if the amendment is for effective and proper adjudication of the controversy between the parties to avoid multiplicity of proceedings, provided it does not result in injustice to the other side. (iii) Amendments, while generally should be allowed, the same should be disallowed if – (a) By the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side. (b) The amendment does not raise a time- barred claim, resulting in the divesting of the other side of a valuable accrued right (in certain situations) (c) The amendment completely changes the nature of the suit; (d) The prayer for amendment is malafide, (e) By the amendment, the other side should not lose a valid defence. (iv) Some general principles to be kept in mind are – (I) The court should avoid a hyper-technical approach ordinarily be liberal, especially when the opposite party can be compensated by costs. (II) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint or introduce an additional or a new approach. (III) The amendment should not change the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint. 12. The question that we have to consider, in the above backdrop is whether the High Court fell in error in allowing the application 10 seeking leave to amend pleadings, in contravention of the statutory language. 13. By way of the amendment, what is sought to be done is, to question the validity of the Will, on the basis of which, the defendant sought to have the suit dismissed, while also expanding the scope of adjudication of the suit to include movable property. It has to be then, demonstrated that – (a) determination of the genuineness of the Will is the necessary course of action in determining the issues inter se the parties; and (b) given the finding of the court below that the application was presented post the commencement of the trial, it could not have been, despite due diligence, to such presented prior commencement. 14. Be that as it may, the overarching Rule is that a liberal approach is to be adopted in consideration of such applications. [See also: Sanjeev Builders (supra); Rakesh Kumar Agarwal v. Rajmala Exports Pvt. Ltd.8; Usha Balasaheb Swami & Ors. v. Kiran Appaso Swami & Ors.9; B.K. Narayana Pillai v. Parmeswaran Pillai & Anr.10] 16. The scope of the dispute before us is limited to a procedural aspect. In the larger scheme, this dispute pertains to succession. If there is a Will, it has to be honoured. If one of the parties, who will be affected by the Will coming into effect, challenges it on one ground or the other, the process of succession cannot go forward without determination of the dispute regarding the Will. 17. Any and all delays in judicial processes should be avoided and minimised to the largest extent possible, and should generally be, and are rightly frowned upon. However, not in all cases can delay determine the fate of a Suit. The defendant submits that the time gap between submitting the written statement to the Suit and the presentation of the application seeking leave to amend is unexplained. If this argument of the defendant is accepted, the question of Will shall remain undecided or at best will be decided with great delay. The trial which has admittedly already commenced, would be stalled by way of a challenge to the framing of issues which, in turn, would not be in consonance with the object of Order VI Rule 17 11 of CPC which is aimed at preventing multiplicity or multiple avenues of litigation, subsumed under the umbrella of one dispute. 18. Keeping in view the above, along with the fact that without determination of the question of Will and its genuineness, the partition of the Suit property would not be possible, we do not find any infirmity in the order of the High Court, allowing the amendment setting aside refusal of the Trial Court to grant such amendment”. 8. Considering the facts and material on record and also considering the law laid down by the Hon'ble Supreme Court in Dinesh Goyal @ Pappu (supra), I am of the view that the learned trial Court has committed illegality in rejecting the amendment application mechanically without examining the relevancy of the amendment and other applications filed under Order 6 Rule 9, Order 7 Rule 8, Order 7 Rule 14, Order 14 Rule 5 and Order 14 Rule 2 of CPC as well as application under Order 17 Rule 1 read with Section 151 of CPC vide order dated 14-03-2008, 25-04-2008 and 01-05-2008, accordingly, the orders are set aside. Consequently, the application filed under Order 6 Rule 17 of CPC for amendment filed by the plaintiff is allowed. The defendant is at liberty to file an application for consequential amendment before the learned trial court, if so desired. 9. So far as merit of the case is concerned, the record of the case would show that no proper opportunity of hearing was given to the plaintiff to lead evidence. The record of the case demonstrates that proceedings of the suit were pending for various applications, as such the evidence was not begun and when it was decided, then only evidence can be begun. The learned trial Court without considering this vital aspect of the 12 case, without application of mind, in arbitrary manner has closed right of the plaintiff to lead evidence which is nothing but denial of principle of natural justice. Therefore, I am of the view that the impugned judgment and decree deserves to be set aside and accordingly, it is set aside. 10. Accordingly, the matter is remitted back to learned trial Court for deciding the case afresh without being influenced by any of the observations made by this court or the contentions raised by the parties while hearing the appeal. The trial court will re-consider the remaining applications, in accordance with law. The defendant shall also be at liberty to file additional reply to the said applications, if so desired. 11. The parties are directed to appear before the trial Court on 29-10- 2025 and thereafter, the trial Court will proceed with the case in accordance with law. 12. Learned counsel for the appellant/plaintiff would submit that in view of the provisions prescribed in Section 13 of the Court Fees Act, 1870, the court fee shall be refunded to the plaintiff afÏxed on the memorandum of the appeal. 13. Accordingly, full court fee be refunded to the plaintiff, in accordance with rules and Registry to do the needful in this regard. 14. Accordingly, the appeal is partly allowed. 15. A decree be drawn up accordingly. Sd/- Raju (Narendra Kumar Vyas) Judge RAVVA SATYANARAYANA RAJU Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2025.09.19 12:47:15 +0530