Back
2013 Supreme(Pat) 921
IN THE HIGH COURT OF JUDICATURE AT PATNA
Chakradhari Sharan Singh, J.
Sudha Agrawal & Ors. – Petitioners
Versus
Ritu Gupta @ Ritu Agrawal - Respondent
Civil Writ Jurisdiction Case No.6280 of 2013
Decided On: 16-08-2013
Advocate Appeared:
For the Petitioner/s: Mr. Ravi Kumar, Mrs. Priya Choubey, Mr. Rajiv Ranjan Singh & Mr. Alok
For the Respondent/s: Mr. Om Prakash Pandey & Mr. S.Pandey
The court emphasized the importance of bonafide applications for amendment and held that substantial changes to the original case at a belated stage may not be accepted as genuine.
Headnote:
Amendment - Civil Procedure - Code of Civil Procedure - Order VI Rule 17
Fact of the Case:
The court considered an application challenging an order allowing an amendment to the plaint in a partition suit filed in 2002. The amendment sought to make significant changes to the original case, including adding properties as joint family property and altering key facts.
Finding of the Court:
The court found that the nature of the amendments sought amounted to substantially changing the original case and substituting a different and new case. It held that the belated stage at which the application for amendment was filed put a question mark on its bonafide, and the application was not accepted as genuine.
Issues: The main issue was whether the amendments sought in the plaint, filed more than ten years after the institution of the suit and after the evidence of the plaintiff was closed, should be allowed.
Ratio Decidendi: The court held that the nature of the amendments sought and the stage of the suit at which the application for amendment was filed indicated that the application was not bonafide. It set aside the impugned order allowing the amendments.
Final Decision: The impugned order allowing the amendments to the plaint was set aside.
The present application under Article 227 of the Constitution of India has been filed challenging the order dated 19.12.2012 passed by learned Sub Judge-5, Bhabhua, in Title Suit No. 25 of 2002, whereby the Court below has allowed a petition dated 26.9.2012 filed by the plaintiffs/respondents under Order VI Rule 17 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) for amendment in the plaint.
2. The suit for partition being Title Suit No. 25 of 2002 was filed by the respondents. The petitioners were impleaded as defendant Nos. 17A to 17 D. The case of the petitioners is that after nearly ten years of the institution of the suit and after closing of the evidence of the plaintiff, a petition dated 26.9.2012 was filed seeking various amendments in the plaint.
3. Learned Counsel appearing on behalf of the petitioners submits that while allowing the plaint to be amended by the impugned order, the whole foundation of the case is being changed. It has been submitted that by seeking amendment after ten years, particularly much after commencement of trial the plaintiffs are trying to add various properties in the plaint as joint family property including such property which were self acquired properties by the petitioners. Referring to the amendment petition, learned counsel for the petitioners has submitted that at such belated stage an application seeking amendment, which amounts to virtually changing the entire texture of the plaint should not have been allowed by the Court below. He further submits that the written statement was filed on the basis of assertions made in the plaint. The facts asserted in the plaint and not disputed in the written statement are such admissions which could not have been withdrawn by way of amendment.
4. Learned counsel appearing on behalf of the respondent first set, on the other hand, has submitted that the amendment which has been allowed to be made in the plaint would not prejudice the case of the petitioners as they would be having sufficient opportunity of rebuttal. He submits that the Court below has acted within its jurisdiction by allowing amendment in the plaint for the reasons mentioned in the impugned order and it does not require any interference by this Court in a proceeding under Article 227 of the Constitution of India.
5. I have perused the plaint of said Title Suit No. 25 of 2002 which is Annexure-1 of this application. Annexure-2 is the application filed by the plaintiffs/respondent under Order VI Rule 17 of the Code, seeking amendment in the plaint. From comparison of the two following facts emerge:-
(1) By the first amendment petitioners seek to replace year of partition as mentioned in para 7 of the plaint ‘1962’ by ‘1985’.
(2) By second amendment the plaintiff seeks to substitute ‘805’ in place of ‘380’ being area of the land in Hectares.
(3) By third amendment the plaintiff wants to add various plots in Schedule ‘Ka’ of the plaint which contains the details of the joint family property.
(4) In paragraph 12 of the plaint, the plaintiff has asserted that Kamlakant Agarwal was the karta of the branch of late Lakhi Prasad after partition from the branch of Baijnath Prasad Agarwal. By fourth amendment the plaintiff wanted to delete the said paragraph and substitute the fact that Baijnath Prasad Agarwal and Lakhi Prasad were joint and they were engaged in business jointly and Baiju Babu was the karta of the family after his death Uma Kant Agarwal became the karta of the family.
(5) In paragraph 13 of the plaint it was asserted that Kamlakant Agarwal in his capacity as karta of the joint family obtained an Agency for Kerosene oil business and over which the branch of Lakhi Pd. Agarwal continued in possession. By fifth amendment the plaintiff wanted to introduce some fact according to which the branches of Lakhi Prasad and Baijnath Pd. Agarwal both had possession and control over the business of Kerosene oil Agency meaning thereby that both the branches were joint.
6
