Pratima Devi, Aged about 55 years, W/o Shyam Kishore Tiwari, Resident of Village Ataula v. Village + P.O. Jorn, P.S. Medininagar & District Palamau
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 2502 of 2018 Pratima Devi, Aged about 55 years, W/o Shyam Kishore Tiwari, Resident of Village Ataula, P.O. Ataula, P.S. Meral & District Garhwa … … Petitioner 1. Parshuram Tiwari, S/o Late Ram Chandra Tiwari, Resident of Versus Village + P.O. Jorn, P.S. Medininagar & District Palamau (Respondent No. 1 deleted vide order dated 15.06.2022) 2. Dayanand Pandey @ Daya Shankaar Pandey, S/o Late Jay Shree Pandey, Resident of Village + P.O. Baralota, P.S. Daltonganj & District Palamau 3. Ajay Kumar Tiwari 4. Sanjay Kumar Tiwari 5. Dilip Tiwari All three S/o Late Sudam Tiwari 6. Asharfi Tiwari 7. Brahamdeo Tiwari 8. Vidyasagar Tiwari 9. Arun Tiwari 10. Sushil Tiwari All five S/o Parshuram Tiwari 11. Kumari Devi, W/o Purushottam Dubey 12. Asho Devi, W/o Bhuwaneshwar Dubey 13. Kamala Devi, W/o Janardan Tiwari 14. Sumitra Devi, W/o Kyas Dubey All are R/o Village _ PO-Purabdiha, P.S. Chainpur & District Palamau … … Defendants/Appellants/Respondents 15. Jay Ram Ojha 16. Lakshman Ojha 17. Bharat Ojha 18. Shatrughan Ojha 19. Parshuram Ojha 20. Abhimanyu Ojha All six S/o Late Sugriw Ojha, R/o of Village + P.O. Sudana, P.S. Daltonganj, District Palamau 21. Lira Devi, W/o Basant Pandey, D/o Late Sugriw Ojha, R/o Village + P.O. Baralota, P.S. Daltonganj & District Palamau 22. Chanda Devi, W/o Bhuwaneshwar Pandey, D/o Late Sugriw Ojha, Village + P.O. Sudana, P.S. Daltonganj & District Palamau 23. Shakuntala Devi, W/o Anand Kumar Tiwari, D/o Late Sugriw Ojha, Village + P.O. Redma, P.S. Daltonganj & District Palamau 24. Sudama Ojha, S/o Late Tapeshwar Ojha, R/o Village Sudana, P.O., P.S. Daltonganj & District Palamau 25. Lalita Devi, W/o Mahender Pandey, Village Sudana, P.O., P.S. Daltonganj & District Palamau 26. Ayodhaya Tiwari 27. Naradh Tiwari 28. Gangeshwar Tiwari All three S/o Manchoo Tiwari & Jasmati Devi 2 29. Renu Devi, W/o Gorakh Tiwari, Daughter-in-law of Manchoo Tiwari & Jasmati Devi 30. Kamala Devi, W/o Kameshwar Shukla, D/o Manchoo Tiwari & Jasmati Devi 31. Surat Devi, W/o Prahlad Choubey, D/o Manchoo Tiwari & Jasmati Devi All six R/o Village Marhatiya, P.O. Tildag, P.S. Garhwa & District Garhwa. 32. Sharda Devi, W/o Amarnath Tiwari, D/o Manchoo Tiwari & Jasmati Devi, R/o Beur Adarsh Jail, P.O. Anishabad, P.S. Patna, District Patna, PIN Code 800002 (Bihar).
Legal Reasoning
… … Defendants/Respondents/Performa Respondents --- CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Respondents
Legal Reasoning
--- : Mr. Chanchal Jain, Advocate : Mr. Sudhir Kumar Sharma, Advocate : Mr. Arbind Kumar Sinha, Advocate : Mr. Anil Kumar, Advocate --- 15/15.05.2023 1. 2. Heard the learned counsel for the parties. This writ petition has been filed for the following reliefs: - “i. For issuance of appropriate Writ(s)/Order(s)/Direction(s) for quashing of the order dated 03.02.2018 (Annexure-9) passed by the Learned Court of District Judge –IV, Palamau in Title Appeal No. 39/2013 whereby and where under the petition filed by the plaintiff/respondent/petitioner under Order 6 Rule 17 of the Code of Civil Procedure, seeking an amendment in the relief/prayer portion of the plaint, has been rejected. ii. For issuance of appropriate writ(s)/Order(s)/Direction(s) that pursuant to the quashing of the order dated 03.02.2018 (Annexure- 8), the amendment as sought by the petitioner be allowed. iii. For issuance of an interim order that pending final disposal of the instant writ petition, the proceedings of the Title Appeal No. 39/2013 pending before the Learned Court of District Judge-IV, Palamau shall remain stayed. The petitioner further Writ(s)/Order(s)/Direction(s), which Your Lordships may deem fit and proper in the facts and circumstances of the case.” issuance of any further prays AND/OR for Arguments of the petitioner 3. The learned counsel for the petitioner has submitted that by the impugned order, the learned appellate court has rejected the petition for amendment filed under Order 6 Rule 17 of the Code of Civil Procedure. The learned counsel has referred to the plaint as contained in Annexure – 1 and has submitted that it was specifically pleaded in the plaint in para 16 that the plaintiff had purchased the property involved in the present case for valuable consideration from proforma 3 defendant and came in possession of the land. The learned counsel has also referred to the relief as prayed for in the plaint i.e., the plaint was filed for declaration of title of plaintiff over the suit land and also for cost of the suit against the defendants. 4. The written statement filed on behalf of the defendants is also on record and the response to para 16 of the claim has been given in para 19 of the written statement. The learned counsel has referred to the final judgment passed in the suit being Title Suit No.65 of 1998 dated 29.06.2013. The issues framed is at internal page 10 of the judgment and admittedly, no issue has been framed with regard to possession over the property. However, the learned counsel has submitted that vide para 60 of the judgment, it has been held by the learned trial court that the plaintiff has valid right, title, interest and possession over the suit land. He has also submitted that an order of injunction was also passed in favour of the plaintiff by the learned trial court. The learned counsel submits that the defendants filed appeal and at the appellate stage, the plaintiff, being the respondent, filed a petition for amendment mentioning therein that in the last week of August, 2013 i.e., after passing of the judgment in the suit, the defendants had broken the gate of the boundary wall and started constructing house within the boundary wall. He has submitted that there was a subsequent cause of action, after the decision of the suit, for seeking amendment in the plaint. He has also submitted that in the amendment petition itself, it was recorded that the amendment was sought for on account of subsequent development and the amendment was formal in nature and does not change the complexion of the suit. It was also mentioned that the proposed amendment was relating to only the relief portion and no fresh evidence was required and the proposed amendment will not cause any injury to the defendants. 5. He has referred to the proposed amendment to submit that through the proposed amendment, the plaintiff was seeking a declaration that the possession of the plaintiff over the suit land be confirmed and if during the course of trial of the suit and appeal, the plaintiff is found out of possession from the suit land and if the defendants jointly or severally or their agent, nominee etc. are found 4 in possession by making illegal construction over the suit land, then after demolishing the illegal construction, the possession of plaintiff over the suit land be restored by the process of court at the cost of the defendants, by evicting them from any portion of the suit land. 6. The learned counsel submits that a rejoinder was filed to the petition for amendment and ultimately the learned court below has rejected the petition by impugned order dated 03.02.2018. 7. The learned counsel for the petitioner has submitted that the findings recorded by the learned court below while rejecting the petition for amendment are perverse and calls for interference. He has submitted that the learned appellate court has failed to exercise jurisdiction in the light of the judgments which have been passed by the Hon'ble Supreme Court in the matter of amendment. 8. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in (1984) 1 SCC 668 (Haridas Aildas Thadani and Ors. Vs. Godrej Rustom Kermani). He has submitted that it is a short judgment and the test for allowing the amendment is to find out whether the proposed amendment works any serious injustice to the other side and as to whether the nature of suit will be altered or not. He has also relied upon the judgment reported in (2008) 8 SCC 511 (North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das) para 1, 12 and 16 and while giving the facts of the said case, he has referred to para 2 which reflects that the amendment at the appellate stage was rejected on the ground that such an application could not be entertained in the second appeal. He has further referred to para 12 and 16 of the said judgment to submit that the principle of amendment has been laid down which is required to satisfy two conditions: (a) of not working injustice to the other side, (b) of being necessary for the purpose of determining the real question in controversy between the parties. It has also been held that amendment 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 cost. 5 9. The learned counsel has also relied upon the judgment passed by Hon'ble Supreme Court reported in (2012) 5 SCC 337 (Ramesh Kumar Agarwal Vs. Rajmala Exports Pvt. Ltd.) para 20 and 21 and has submitted that the principles guiding amendment has been laid down by the Hon'ble Supreme Court and the case of the petitioner seeking amendment is squarely covered by the various criteria laid by the Hon'ble Supreme Court. He has also relied upon judgment reported in (2006) 4 SCC 385 (Rajesh Kumar Aggarwal and Ors. Vs. K.K. Modi and Ors.) para 17, 18 and 19 and has in particular referred to para 19 thereof to submit that the court should not go into the correctness or falsity of the case in the amendment and the merit of the amendment sought to be incorporated are not to be adjudged at the stage allowing the prayer for amendment. He has also referred to para 17 of the said judgment to submit that when a cause of action arises during the pendency of the suit, proposed amendment should be granted because the basic structure of the suit does not change and through the amendment only the nature of relief changes. He has also submitted that it has been held by the Hon'ble Supreme Court that if it was permissible for the appellants to file an independent suit then why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. 10. The learned counsel has lastly relied upon the judgment passed by Hon'ble Madras High Court in the case of Rajapunnisa Vs. Meharajan Begum decided on 26.09.2013 in C.R.P. (PD) No.3759 of 2011 and has submitted that the case of the petitioner is squarely covered by the said judgment and has referred to para 15 and 16 thereof. Arguments of the respondents 11. The learned counsel for the respondents, while opposing the prayer of the petitioner, has submitted that the suit was filed only for declaration of title and such suit was hit by the provision of Section 34 of the Specific Relief Act. He has also submitted that this plea has been raised by the defendants in the appeal before the appellate court. The learned counsel has also submitted that the possession of the plaintiff was denied by filing a detailed written statement, but no relief 6 was prayed for in the suit regarding confirmation of possession or recovery of possession. The learned counsel has submitted that the impugned order does not call for any interference by this Court. 12. He has relied upon the judgment passed by this Court reported in 2021 (4) JBCJ 302 and also the judgment reported in AIR 1996 SC 642. Findings of this Court 13. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that Title Suit No. 65/1995 was filed by the petitioner and the petitioner claimed that the petitioner had purchased suit property from the proforma defendants and came in possession of the land. The suit was for declaration of title and for cost. No relief relating to possession i.e., confirmation of possession or in the alternative recovery of possession in case of dispossession was made in the suit. As per the written statement, the possession as claimed by the plaintiff was disputed. 14. So far as the issues are concerned, nine issues were framed and one of the issues was as to whether the suit was barred under the provisions of Section 34 of the Specific Relief Act. Further, none of the issues related to possession. However, while deciding the title suit, finding was recorded that the plaintiff has valid right, title, interest and possession over the suit land. 15. The defendants went in appeal and the appeal was numbered as Title Appeal No. 39/2013. The defendants raised a plea that the suit itself was barred under Section 34 of the Specific Relief Act as the suit was only for a declaration of title. Thereafter, the plaintiff, who were the respondents before the appellate court, filed a petition seeking amendment of the plaint. 16. The suit was decided vide judgment dated 29.06.2013 and in the amendment petition, a submission was made at paragraph 8 that in the last week of August, 2013, the defendants sought to dispossess the plaintiff wrongfully, forcefully and unlawfully and it was also stated that the amendment was sought for on account of subsequent development; the amendment was formal and related only to relief 7 portion and no fresh evidence was required and the proposed amendment will not cause any injury to the defendants. The proposed amendment which was sought for, interalia, is as under: - “On above declaration, the possession of the plaintiff over the suit land be confirmed and if during the course of trial of the suit and appeal, plaintiff is found out of possession from the suit land and if the defendants jointly or severally or their agent, nominee, attorney holders, transferees, representative and assigns are found in possession by making illegal construction over the suit land then after demolishing this illegal construction the possession of the plaintiff over the same be restored by the process of court at the cost of the defendants, by evicting them from any portion of the suit land.” 17. The petition for amendment was opposed by the defendants who were the appellants before the learned court below. 18. Upon perusal of the proposed amendment, this Court finds that the plaintiff at the appellate stage was trying to amend the plaint by introducing the relief seeking a declaration that the possession of the plaintiff over the suit land be confirmed and if during the course of trial of the suit and appeal, the plaintiff is found out of possession from the suit land and if the defendants jointly or severally or their agent, nominee, attorney holders, transferees, representative and assigns are found in possession by making illegal construction over the suit land, then the same be demolished and possession be restored. 19. This Court finds that the nature of amendment, which was sought for, was to introduce a relief in the original plaint seeking confirmation of possession of the suit property and also introducing alternative relief that if the plaintiff is not found in possession, the possession be restored. Admittedly, the suit was filed only for declaration of title. The plaintiff had asserted possession in the plaint which was disputed by the defendants. No issue, was framed before the original court with regard to any dispute regarding possession and admittedly, no relief was prayed for in the suit regarding possession. 20. This Court finds that the learned court below after considering the proposed amendment has rejected the same by recording that the relief in the title suit was only for declaration of title and that the plaintiff did not seek any relief of confirmation or recovery of possession and further holding that if the amendment is allowed the same would give rise to a fresh issue for consideration, for which evidence is required to be adduced and it will create a great hardship 8 to the defendants. The learned court below also recorded that through the amendment, the plaintiff wanted only to improve their case and fill up the lacuna by way of proposed amendment and rejected the petition for amendment. 21. Considering the nature of amendment which is sought to be introduced by the plaintiff, this Court is also of the considered view that the amendment would certainly change the nature of suit and will introduce new issues of possession which essentially requires evidence. The amendment sought for is seeking to introduce the relief of confirmation of possession and also alternative remedy of recovery of possession. This Court is of the considered view that the relief which is sought to be introduced through amendment could have been prayed for by the plaintiff at the time of filing of the suit itself but no such relief was prayed in the plaint by the plaintiff. The plaintiff at the appellate stage, while giving a fresh cause of action post judgement, is trying to introduce the relief in the plaint which could have been introduced by the plaintiff at the stage of filing of the suit itself. 22. This Court is of the considered view that considering the nature of relief which was sought for in the plaint and the nature of relief, which was sought to be introduced through amendment, the same will certainly change the nature of the suit, cause injustice to the defendants. This court also finds that the amendment sought to be introduced was not necessary for the purposes of determining the real questions in controversy between the parties. Considering the nature of relief sought for in the plaint, the controversy between the parties was relating to title and no issue was framed in connection with possession of property. 23. This Court finds that the impugned order rejecting the amendment of the plaint at the appellate stage is neither in conflict nor contrary to any of the judgements relied upon by the petitioner. Rather the impugned order is in consonance with the well settled ratio governing the amendment of pleadings and also considered in the judgements relied upon by the petitioner that such amendment cannot be permitted if it gives rise to a fresh issue for consideration, for which evidence is required to be adduced and which creates great 9 hardship to the defendants, as is the situation in the present case. Further, the learned court below has rightly recorded that through the amendment, the plaintiff wanted to improve their case and fill up the lacuna. 24. This Court has gone through the impugned order and is of the considered view that the learned appellate court has passed a well- reasoned order while rejecting the plea of amendment. Considering the limited scope of interference under Article 227 of the Constitution of India, this Court does not find any reason to interfere with the Interim order, if any, stands vacated. impugned order. This writ petition is accordingly dismissed. 25. 26. 27. Let this order be immediately communicated to the learned Pending interlocutory application, if any, is closed. court below through FAX/e-mail. Saurav/Mukul (Anubha Rawat Choudhary, J.)