An amendment to a plaint cannot be allowed after the closure of the plaintiff's evidence if the primary purpose is to fill a lacuna or bring the pleadings in conformity with the witness depositions recorded during the trial.

ORAL ORDER

12 06-12-2022

Heard Mr. Pushkar Narain Shahi, learned senior counsel for the petitioners and Mr. Anant Kumar Bhaskar learned counsel appearing for the respondents/plaintiffs.

The petitioners are aggrieved by the order dated 15th November, 2017 passed by the learned Sub Judge-III, Rosera, in Title Suit No. 80 of 2004, by which, the learned Trial Court has allowed the amendment of plaint filed by the plaintiffs after commencement of trial and closure of evidence of the plaintiffs and while the evidence of defendants was going on.

Learned senior counsel pointing to the paragraph 3 of the plaint submits that this is a categorical case of the plaintiffs in paragraph-3 that after death of Babu Maheshwar Prasad Narayan Singh, the property in question was succeeded by all the heirs and by virtue of family arrangement, the property came to the plaintiff and the plaintiff is in possession and ownership of the same. The objection of the petitioners is with regard to the amendment No. 5 only by which the respondent/plaintiff wants to change his stand taken in the plaint to the extent that instead of statement that the property was succeeded by all the heirs of Babu Maheshwar Prasad Narayan Singh, the same was only succeeded by his son Chandramauleshwar Prasad Narayan Singh be added. Accordingly, his submission is that the amendment at the later stage and after commencement of the trial and closure of evidence of the plaintiff, ought not have been allowed by the learned Trial Court, particularly when the intention of the plaintiff is not bona fide inasmuch as the plaintiff wants to fill up the lacuna by amending the plaint in conformity with the deposition of plaintiff’s witnesses recorded during course of the trial.

On the other hand, learned counsel for the respondents submits that the intention of the learned counsel for the respondents/plaintiffs is bonba fide and no prejudice shall be caused to the petitioners if the amendment is allowed. The plaintiff has not deviated from his statement made in paragraph-3 of the plaint. He further submits that the objection is with regard to the amendment No. 5 only and the petitioners have not raised any objection against other amendments.

I have heard learned counsel for the parties and perused the amendment petition as well as the plaint. From perusal of paragraph-3 of the plaint, it transpires that the specific case of the plaintiff is that the property was succeeded by all the heirs of late Babu Maheshwar Prasad Narayan Singh. It is also an admitted position that the statement of witnesses produced on behalf of the plaintiff was recorded during trial and after closure of evidence of the plaintiff, the amendment in paragraph-3 of the plaint is sought in order to add new fact regarding the property being succeeded by only one son of late Babu Maheshwar Prasad Narayan Singh, namely, Chandramauleshwar Prasad Narayan Singh. I find force in the argument of learned senior counsel for the petitioners that amendment in the plaint is sought to fill the lacuna and bring the plaint in conformity with the statement of the witnesses recorded during course of trial.

In view of the aforesaid discussion, in my opinion, after closure of the plaintiff’s evidence and in order to fill up the lacuna, the amendment sought in the plaint i.e. amendment No. 5 cannot be allowed.

In the result, this application is partly allowed and the impugned order dated 15.11.2017 to the extent allowing the amendment No. 5 is set aside.