IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.722 of 2018

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1.Ved Prakash

2.Badri Nath,

3.Subhash Chandra, all 1 to 3 are sons of Sri Ramesh Chandra Chaudhary,

4.Raj Kumari Devi, wife of Badri Nath

5.Babita Devi, wife of Ved Prakash

6.Punam Devi, wife of Subhash Chandra, all 1 to 6 are Resident of Mo.-

Bagtaj Khan alias Pokhra PO and PS- Hajipur Town, District- Vaishali.

... ... Petitioner/s

Versus

1.Kedar Nath Chaudhary, Son of Late Harihar Chaudhary, Resident of Mo.-

Bagtaj Khan alias Pokhra PO and PS- Hajipur Town, District- Vaishali.

2.Baidyanath Chaudhary

3.Vishwanath Chaudhary

4.Sajjan Chaudhary

5.Madan Chaudhary

6.Vijay Chaudhary, all 2 to 6 are sons of Late Harihar Chaudhary, Resident of

Mo.- Bagtaj Khan alias Pokhra PO and PS- Hajipur Town, District- Vaishali.

... ... Respondent/s

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Appearance :

For the Petitioner/s: Mr. D. K. Sinha, Sr. Advocate

Mr. Bajarangi Lal, Advocate

For the Respondent/s: Mr. Y. C. Verma, Sr. Advocate

Mr. Adarsh Singh, Advocate

Ms. Priyanka Singh, Advocate

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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA

CAV JUDGMENT

Date :15-05-2024

The petitioners have filed the instant petition under

Article 227 of the Constitution of India for setting aside the

order dated 24.01.2018 passed by the learned Sub. Judge-IV,

Hajipur in Title Suit No. 253 of 2001, whereby and whereunder

the petition dated 16.08.2017 filed by the plaintiff/respondent

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no. 1 under Order 6 Rule 17 of the Code of Civil Procedure,

1908 (hereinafter referred to as ‘the Code’) has been allowed.

02. It emerges from the record that the

plaintiff/respondent no. 1 filed a partition suit bearing Title Suit

No. 253 of 2001 in the Court of learned Sub. Judge-I, Hajipur

seeking 1/7th share in Schedule-I of the plaint after partition of

the suit property and also for a direction to defendants-2nd set,

petitioners herein, to execute the sale deed in favour of the

plaintiff/respondent no. 1 for the land of Schedule-2 along with

house mentioned in Schedule-2 property of the plaint with

alternative prayer that if the defendants-2nd set/petitioners

failed to executed the sale-deed, the same might be executed

through the process of the Court.

The defendants-2nd set/petitioners appeared in the

suit after notice and filed their joint written statement

controverting the case of the plaintiff. It has also been pointed

out that another partition suit bearing No. 102 of 2000 was filed

by respondent no. 4 against the plaintiff/respondent no. 1 and

other six brothers for partition of Schedule-I property wherein

the present plaintiff-Kedar Nath Chaudhary was transposed as

plaintiff and said suit bearing PS No. 102 of 2000 was decreed

ex-parte vide judgment and decree dated 23.01.2003 and

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05.02.2003, respectively and the plaintiff-Kedar Nath

Chaudhary was held entitled for 1/7 share in the suit property.

Thereafter, the plaintiff/respondent no.1 filed petition for

preparation of final decree and the present petitioners were

added as party defendants vide order dated 03.05.2003 in F.D.

Case No. 102 of 2000. It further transpires that during pendency

of the present suit bearing Title Suit No. 253 of 2001, the

defendant-1st set/respondent nos. 2 to 6 filed a petition under

Section 11 of the Code for staying the suit proceeding during

pendency of the final decree proceeding of PS No. 102 of 2000.

At the same time, Misc. Case No. 09 of 2003 was filed by

defendant-2nd set/petitioners for setting aside the ex-parte

decree proceeding of P.S. No. 102 of 2000 and to allow them to

contest the suit. The learned trial court after hearing the parties,

vide order dated 03.07.2004, stayed the further proceeding of

Title Suit No. 253 of 2001 till disposal of Misc. Case No. 09 of

2003. It further appears that during pendency of Title Suit No.

253 of 2001, original defendant no. 2, namely, Paras Nath

Chaudhary died issue-less and the plaintiff/respondent no.1 filed

petition dated 18.10.2011 for expunging the name of defendant

no. 2 which was ultimately allowed vide order dated 15.06.2012

and the name of defendant no. 2 was deleted from the plaint.

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Meanwhile, Misc. Case No. 09 of 2003 was dismissed as

withdrawn and the learned trial court vide order dated

11.04.2017 vacated its order dated 03.07.2004 and started the

proceedings in Title Suit No. 253 of 2001 for further haring and

on 30.05.2017, the issues have been framed in the suit.

Thereafter, the plaintiff/respondent no. 1 filed petition dated

16.08.2017 under Order 6 Rule 17 of the Code seeking

amendment in the plaint stating therein, inter alia, that since the

brother of the plaintiff/respondent no. 1 died issue-less,

therefore, share of the plaintiff would change to 1/6th in place of

1/7th. Thus, the plaintiff/respondent no.1 sought amendment in

second line of paragraph-10 Page-10, 2

nd

line of Para-13 and 1

st

line of Para-14 of the plaint by striking of 1/7th and for inserting

1/6th in its place. The petitioners/defendant-2nd set filed

rejoinder opposing the amendment petition. The learned trial

court vide impugned order dated 24.01.2018 allowed the

amendment petition subject to payment of cost of Rs.300/-.

03. Learned senior counsel appearing on behalf of the

petitioners has submitted that the order of the learned trial court

is not sustainable and it has been passed in most mechanical

manner without appreciating the objections and contentions

raised by the petitioners. The impugned order is illegal, arbitrary

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and is without jurisdiction and the same is liable to be set aside.

The learned senior counsel further submitted that the learned

trial court failed to take into consideration the fact about share

of the plaintiff/respondent no. 1 to the extent of 1/7th in the suit

property being decreed in Partition Suit No. 102 of 2000. Once,

the share of the plaintiff/respondent no. 1 was decided, it was

not open for him to claim further share in the suit property on

account of death of his brother, defendant no. 2- Paras Nath

Chaudhary. The learned trial court has not considered that at the

time of his death, Paras Nath Chaudhary was not holding any

share in the suit property. Moreover, the defendants-2nd set,

petitioners herein, have already purchased property in dispute

long before and allowing the amendment at this stage would

cause serious prejudice to the petitioners. Learned senior

counsel further submitted that since the partition of the suit land

along with building existing on it has already taken effect in the

Partition Suit No. 102 of 2000, amendment cannot be allowed

unless the judgment and decree of partition suit No. 102 of 2000

are set aside. Learned senior counsel further submitted that the

learned trial court has also not considered that an application

under Section 11 of the code has been pending and without

disposal of the application under Section 11 of the Code, it was

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not proper for the learned trial court to hear and allow the

amendment petition filed by the plaintiff/respondent no.1. The

plaintiff/respondent no. 1 in the garb of the proposed

amendments intends to get the decree passed in their partition

suit No. 102 of 2022 nullified. Learned senior counsel further

submitted that the learned trial court has not considered that the

amendment petition has been filed after trial has commenced

and the same was barred under proviso to Order 6 Rule 17 of

the Code. Learned senior counsel also submitted that the

amendment has been sought after much delay since the

defendant no.2-Paras Nath Chaudhary died much ealier to the

amendment and the plaintiff got his name expunged vide order

dated 15.06.2012 by filing application dated 18.10.2011, so,

there was no occasion for the plaintiff/respondent no. 1 to keep

on waiting for such long period and the plaintiff/respondent no.

1 has failed to show that despite due diligence, he could not

move the amendment petition earlier. The learned trial court

failed to appreciate the fact that on the date of death, defendant

no. 2-Paras Nath Chaudhary was not in possession of any share

of the suit property and he along with his five brothers had

already sold their share to the petitioners much before filing of

the present suit. At the same time, learned trial court while

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allowing the amendment petition, did not provide proper

opportunity to the defendants-2nd set/petitioners to rebut the

same. Thus, the learned counsel submitted that in view of the

aforesaid facts, the impugned order is bad in the eye of law as

well as on fact and fit to be set aside as the impugned order is

illegal and without jurisdiction.

04. Learned senior counsel appearing on behalf of

the respondents submitted that the issues regarding pendency

of an application under Section 11 of the Code or previous

partition are not material for consideration of the amendment

application since in the amendment application merit of the

amendment sought could not be looked into and it is to be seen

whether the amendments are necessary for adjudication of the

real controversy between the parties. In a catena of decisions,

the Hon’ble Supreme Court has held that amendment should be

liberally allowed and only in exceptional circumstances, it

should be refused. Learned senior counsel further submitted

that in a partition suit there could be more than one preliminary

decree and issue of maintainability would not come in the way

of consideration of the amendment petition on the ground of

previous partition wherein the need for moving the amendment

and controversy between the parties have been highlighted for

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consideration of the learned trial court. Learned senior counsel

further submitted that though the respondents moved the

amendment at the earliest opportunity, yet delay could not be a

reason for denial of amendment sought by the respondents.

05. I have given my thoughtful consideration to the

different aspects of the matter and submission made on behalf of

the petitioners. The petitioners are aggrieved by the order of the

learned trial court allowing the amendment petition in partition

suit wherein the plaintiff made amendment with regard to claim

of his share as the plaintiff/respondent no. 1 sought

enhancement of his share from 1/7th to 1/6th of the suit

property by amendment at different places in the plaint.

Objection to such amendment is mainly on the count that the

same plaintiff filed earlier a partition suit, which was decreed

ex-parte and 1/7th share was allotted to the plaintiff/respondent

no.1. Further objection is on the ground that the amendment was

moved after much delay and the same was decided without

deciding the application which has been filed under Section 11

of the Code. I do not find much merit in the submission about

amendment petition not maintainable on the ground that in

earlier partition suit, the share of the plaintiff was decided to the

extent of 1/7th share. The suit filed by the plaintiff/respondent

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no. 1 is a partition suit and the share of joint family property

could change under a number of circumstances. A circumstance

here is death of one of the co-sharers. Whether that co-sharer

was having any property left or not is a matter of trial and the

same could not be rejected in limine. So, the previous decree in

partition suit would not affect the claim of the

plaintiff/respondent no.1 in subsequent suit and the amendment

on this count could not be assailed.

06. So far as delay part is concerned, from the facts as

enumerated herein above, it appears that the amendment has

been filed after delay of about six years. Though, there appears

no explanation for the delay on the point, the delay in all cases

would not dis-entitle a party from moving amendment and

getting the pleadings amended, if it is necessary for doing full

and complete justice between the parties. Although, the proviso

to Order 6 Rule 17 of the Code bars amendment after

commencement of trial, the same could not be allowed to come

in the way of adjudication of real dispute between the parties.

The law on the point of amendment at the stage of ‘after

commencement of trial’ is no more res integra and the Hon’ble

Supreme Court in the case of Surender Kumar Sharma v.

Makhan Singh, reported in (2009) 10 SCC 626 has held that

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amendment can be brought at any stage of the trial even after

commencement of trial, if it is necessary for doing full and

complete justice between the parties, subject to cost or

otherwise. Thus, the amendment can be allowed if the affected

parties could be compensated in terms of cost.

07. Whatever be the claim of the petitioner about

assignment of property in their favour by the deceased

defendant or his brother, the same could be agitated before the

learned trial court in course of trial. On this count, the

petitioners’ claim about serious prejudice being caused to them

does not matter since in any case they have to establish their

right and change in claim of share by the plaintiff/respondent

no. 1 is not material for the said purpose. The pendency of an

application under Section 11 of the Code and moving an

application under Order 6 Rule 17 of the Code are different

issues. If any application under Section 11 of the Code was

pending, ideally, the learned court below should have disposed

of the same before taking up the application moved for

amendment for consideration. But the same is not an illegality.

08. Moreover, the Hon’ble Supreme Court in a catena

of decisions have held that the endeavour of the Court should be

to decide the real controversy between the parties and towards

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that while allowing amendments a liberal view should be taken.

Even recently, the Hon’ble Supreme Court in the case of Life

Insurance Corporation of India Vs. Sanjeev Builders Private

Limited and Anr, reported in 2022 SCC OnLine SC 1128, in

Paragraph-70, has given a number of guidelines for allowing the

amendment in the following terms:-

“70. Our final conclusions may be

summed up thus:

(i) Order II Rule 2 CPC operates as a

bar against a subsequent suit if the

requisite conditions for application thereof

are satisfied and the field of amendment of

pleadings falls far beyond its purview. The

plea of amendment being barred under

Order II Rule 2 CPC is, thus,

misconceived and hence negatived.

(ii) All amendments are to be allowed

which are necessary for determining the

real 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.

(iii) The prayer for amendment is to

be allowed

(i) if the amendment is required for

effective and proper adjudication of the

controversy between the parties, and

(ii) to avoid multiplicity of

proceedings, provided

(a) the amendment does not result

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in injustice to the other side,

(b) 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 and

(c) the amendment does not raise a

time barred claim, resulting in divesting

of the other side of a valuable accrued

right (in certain situations).

(iv) A prayer for amendment is

generally required to be allowed unless

(i) by the amendment, a time

barred claim is sought to be introduced,

in which case the fact that the claim

would be time barred becomes a

relevant factor for consideration,

(ii) the amendment changes the

nature of the suit,

(iii) the prayer for amendment is

malafide, or

(iv) by the amendment, the other

side loses a valid defence.

(v) In dealing with a prayer for

amendment of pleadings, the court should

avoid a hypertechnical approach, and is

ordinarily required to be liberal especially

where the opposite party can be

compensated by costs.

(vi) Where the amendment would

enable the court to pin-pointedly consider

the dispute and would aid in rendering a

more satisfactory decision, the prayer for

amendment should be allowed.

(vii) Where the amendment merely

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sought to introduce an additional or a new

approach without introducing a time

barred cause of action, the amendment is

liable to be allowed even after expiry of

limitation.

(viii) Amendment may be justifiably

allowed where it is intended to rectify the

absence of material particulars in the

plaint.

(ix) Delay in applying for amendment

alone is not a ground to disallow the

prayer. Where the aspect of delay is

arguable, the prayer for amendment could

be allowed and the issue of limitation

framed separately for decision.

(x) Where the amendment changes the

nature of the suit or the cause of action, so

as to set up an entirely new case, foreign

to the case set up in the plaint, the

amendment must be disallowed. Where,

however, the amendment sought is only

with respect to the relief in the plaint, and

is predicated on facts which are already

pleaded in the plaint, ordinarily the

amendment is required to be allowed.

(xi) Where the amendment is sought

before commencement of trial, the court is

required to be liberal in its approach. The

court is required to bear in mind the fact

that the opposite party would have a

chance to meet the case set up in

amendment. As such, where the

amendment does not result in irreparable

prejudice to the opposite party, or divest

the opposite party of an advantage which

it had secured as a result of an admission

by the party seeking amendment, the

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amendment is required to be allowed.

Equally, where the amendment is

necessary for the court to effectively

adjudicate on the main issues in

controversy between the parties, the

amendment should be allowed.”

09. In the light of aforesaid discussion, I am of the

view that the impugned order does not require interference by

this Court except on the point of payment of cost to the

petitioners. Hence, the order dated 24.01.2018 passed by the

learned Sub. Judge-IV, Hajipur in Title Suit No. 253 of 2001 is

affirmed subject to payment of cost of Rs. 10,000/- to be paid

to the petitioners within a month from the date of this order. At

the same time, the learned trial court will take into

consideration the fact that the petitioners/defendant-2nd set are

given ample opportunity to controvert/rebut the amendment

sought to be brought, if they so desire. Furthermore, the

learned trial court would take up the petition filed under

Section 11 of the Code by the petitioners for disposal at the

earliest.

10. Accordingly, the instant Civil Misc. Petition

stands dismissed but with aforesaid modification in the

impugned order.

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11. This Court has not expressed any opinion on the

merits of the case in any manner and whatever has been

observed, is only for the purpose of disposal of the present

petition and the learned trial court will not be prejudiced by

any of the observations made by this Court.

Ashish/-

(Arun Kumar Jha, J)

AFR/NAFR AFR

CAV DATE 25-04-2024

Uploading Date 16-05-2024

Transmission Date NA