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IN THE HIGH COURT OF JUDICATURE AT PATNA
SUNIL DUTTA MISHRA, J.
Shankar Choudhary @ Shankar Kumar Choudhary, Son of Late Satya Narayan Choudhari – Appellant
Versus
Jasso Miyan S/o Mohammad Miyan – Respondent
Civil Miscellaneous Jurisdiction No.899 of 2018
Decided on : 27-07-2023
Amendment - Civil Suit - Order VI Rule 17 C.P.C. - Section 145 Cr.P.C. - Section 26 of the Specific Relief Act - Amendment principles discussed in Chander Kanta Bansal Vs Rajinder Singh Anand, M/s Ganesh Trading Co. Vs Moji Ram, Revajeetu Builders and Developers Vs. Narayan Swamy and Sons, Pankaja and Anr. vs. Yellappa, Vidyabai Vs. Padma Latha & Anr.
Fact of the Case:
The plaintiffs filed a suit for declaration and permanent injunction regarding possession of a land. The defendants contested the suit and sought to set aside the order allowing the plaintiffs to amend the plaint to include additional land.
Finding of the Court:
The court found that the proposed amendment did not change the nature of the suit and was not time-barred. It also held that the amendment was imperative for proper adjudication and did not cause prejudice to the defendants.
Issues: The issues revolved around the nature of the proposed amendment, the timing of the application, and the impact on the defendants.
Ratio Decidendi: The court applied principles from various cases to determine the validity of the proposed amendment, emphasizing the need to avoid multiplicity of proceedings and promote the ends of justice.
Final Decision: The court dismissed the application, finding that the trial court did not commit any illegality in allowing the amendment.
JUDGMENT :
Heard learned counsel for the parties.
2. This Civil Miscellaneous Application has been filed for setting aside the order dated 12.10.2017 passed by the learned Munsif, Gogri, District-Khagaria in Title Suit No. 01 of 2008 whereby and whereunder the learned Court below was pleased to allow the petition filed by the plaintiffs-respondents under Order VI Rule 17 C.P.C. for amendment in the plaint.
3. Respondent Nos. 1 and 2 are plaintiffs who have filed the suit being Title Suit No. 01 of 2008 for declaration that defendants did not acquire any right, title, interest and possession by the order dated 29.03.1996 passed by learned S.D.M. Gogri in a proceeding under Section 145 Cr. P.C. in Case No. 1165M/84 and also to restrain permanently the defendants to make any interference in anyway with respect to the property of Imambara mentioned in Schedule I of the plaint.
4. The case of plaintiff/respondents Nos. 1 and 2 is that suit land plot No. 564 and 565 which are adjacent plots were recorded in the name of Most. Jhunia which was succeeded by her daughter Purni and maternal grandson Mishri Sahni and they were in possession over the suit land who subsequently mortgaged their 1 Katha 11 Dhur land of said plots to father and uncle of defendants vide registered mortgage deed dated 22.10.1947 and they were utilizing the mortgaged property till 15.11.1949 when the mortgage was redeemed. Thereafter, Purni died and entire property inherited by her son Mishri Sahni. Subsequently, Mishri Sahni by registered deed of gift dated 10.10.1955 transferred his 5 Dhur of land of plot No. 564 and 565 in favour of Imambara and left the village as such Imambara (also known as Mir Khanna Akhara) came in physical possession over 1 Katha 15 Dhur land of plot No. 564 and 565.
5. The proceeding initiated under Section 144 Cr.P.C. in year 1984 before S.D.M. Khagaria was converted into Section 145 Cr.P.C. in which plaintiff was second party and vide order dated 29.03.1996 the S.D.M., Gogri declared possession of the petitioner over the disputed land. The Revision Petition against the said order was dismissed on 15.05.2003 by 3rd Additional Judge, Khagaria and the Cr. Misc. No. 19475/2003 before this Court was also dismissed with liberty to file the suit in accordance with law vide order dated 14.11.2005.
6. The Case of defendants/petitioner is that Most. Jhunia died leaving behind no legal heirs and after her death the land recorded in her name which was came into physical possession of ex-landlord Jamaluddin and he sold the same to Bhaiya Ram Choudhary and Naubat Lal Chaudhary vide registered sale deed dated 08.08.1949 and after their death the descendants are continuing in possession, they are paying rent and obtaining receipts. The alleged gift deed dated 10.10.1955 is illegal, void and did not transfer any right, title and interest. The alleged gift deed is not with respect to one Katha 15 dhur of land.
7. Learned counsel for the petitioner has submitted that the learned Court below failed to appreciate that the proposed amendment will change the nature of suit as initially suit was filed for 5 dhur land but now the plaintiffs/respondents are claiming additional land. Further, he has submitted that the issues were settled and it was fixed for adducing evidence on behalf of the plaintiff and at the belated stage the petition for amendment of plaint was filed which has been allowed by the learned Court below without appreciating that due diligence has not been taken by the plaintiff and there was no reasonable explanation for delay. The amendment sought cannot be said as typing mistake and the amendment proposed is time barred also as the suit was filed in year 2008 whereas the amendment petition has been filed in year 2017.
8. Learned counsel for the petitioner submits that the petitioner, by way of amendment, wants to incorporate the statement to the effect that 5 dhur area mentioned in gift deed has been wrongly mentioned but the boundary refers to ent
The main legal point established is that amendments to pleadings should be allowed if imperative for proper adjudication and do not cause prejudice, in line with principles from Chander Kanta Bansal,....
Amendment of plaint – If amendment is necessary for deciding real controversy between parties and for arriving at a just conclusion, such amendment could be allowed even at a late stage.
Amendment of plaint – Court has power to allow amendments in connection with claims which had become time-barred, if special circumstances exist and it be in interest of justice.
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.....
Amendments to pleadings under Order VI Rule 17 of CPC can be permitted even post-delay if they facilitate effective adjudication and do not cause injustice to the opposing party.
All necessary amendments for determining the real questions in controversy should be allowed, provided it does not cause injustice or prejudice to the other side. Delay alone cannot be a ground to di....
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