Bando Orain vs Timru Oraon And Ors

The present writ petition has been filed for quashing order dated 06.06.2019 (Annexure-5 to the writ petition) passed by the Additional Civil Judge

(Jr. Divison)-II, Gumla, in Title Suit No. 23/2009, whereby an application under Order VI Rule 17 CPC filed on behalf of the plaintiffs for amendment

in paragraph-1 and the Schedule-B of the plaint, wherein area of the land in question and the description of khata and plot number were wrongly

mentioned due to the typographical mistake as well as to add some more plots, has been rejected.

Heard the learned counsel for the petitioner and perused the contents of the writ petition. The plaintiffs including the petitioner filed Title Suit No.

23/2009 in the court of Munsiff, Gumla seeking decree of khas possession of the land mentioned in Schedule-B of the plaint. A written statement was

filed on behalf of the defendants in the year 2010 specifically denying that they were not concerned with the plots mentioned in Schedule-B of the

plaint. Pursuant thereto, an application under Order VI Rule 17 CPC was filed on behalf of the plaintiffs on 24.08.2013 seeking following amendments

in the plaint:

“1. That in this suit the land of this suit is under Khata No. 76 and total area is 10.29 Dec.

That due to typing mistake in Para 1 in line 2 of the plaint after the word total area of “20.29 Dec.†has been wrongly typed in place

of area of “10.29 Dec.â€​

That in Schedule-B of the plaint due to typing mistake Khata No. “66†has been wrongly typed in place of Khata No. “76†and

Plot No. “773†has been wrongly typed in place of Plot No. “713â€, and after the word out of “2.31 Dec.†has been wrongly

typed in place of “0.31 Dec.†and in Plot No. 730 area “0.27 Dec.†has been wrongly typed in place of area “0.29 Dec.†and

Plot No. 735 has been wrongly typed in place of 733.

That due to typing mistake in Schedule B of the plaint following plots have not been typed after Plot No. 758.

“Plot No. 527 Area 0.24 Dec.â€​

“Plot No. 759 area 0.15 Dec. out of 0.30 Dec.â€​

“Plot No. 760 area 1.08 Dec.â€​

“Plot No. 764 area 0.03 Dec.â€​

“Plot No. 822 area 0.74 Dec.â€​

“Plot No. 763 area 0.05 Dec.â€​

“Plot No. 620 area 0.50 Dec.â€​ and “Plot No. 719 area 0.24 Dec.â€​ be allowed to be added.

That in the relief portion of the plaint in para-1 after the word plaintiff’s title thereto- “Khas possession be given to the plaintiffâ€

be also allowed to be added.â€​

In the present case, the plaintiffs, by way of filing an application under Order VI Rule 17 before the court below, stated that in Schedule B of the

plaint, the plot numbers and area of some plots have been wrongly typed as also some plots have not been typed. It was contended that all these

mistakes have occurred due to typographical error and that the proposed amendments were formal in nature and would not change the basic structure

of the plaint.

A rejoinder to the said amendment application was filed on behalf of the defendants and vide impugned order dated 06.06.2019, the learned

Additional Civil Judge (Jr. Division)-II, Gumla rejected the said amendment application filed on behalf of the plaintiffs holding inter alia that only reason

assigned on behalf of the plaintiffs was that typographical errors had occurred while drafting the plaint. The learned court below also observed in the

impugned order that though the plaint was filed in the year 2009 and the written statement was filed on behalf of the defendants in 2010, the plaintiffs

filed the amendment application seeking amendment in the plaint in the year 2013 which can certainly be said to be devoid of diligence on the part of

the plaintiffs.

The learned court below has also observed in the impugned order dated 06.06.2019 that the said amendment was sought on behalf of the plaintiff to

fill up the lacuna which appeared after filing the written statement on behalf of the defendants.

The Plots sought to be added has not been explained by the plaintiffs as to how these plots come in purview of the suit and are required to be added

for the just and equitable disposal of the suit. It has further been recorded by the learned court below that by the proposed amendment, the entire

structure of suit land is asked to be amended.

In the case of “Revajeetu Builders & Developers Vs. Narayanaswamy and Sons & Ors.†reported in (2009) 10 SCC 8,4 the Hon’ble

Supreme Court held as under:-

“Whether amendment is necessary to decide real controversy

The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary

for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the

basic test which should govern the courts' discretion in grant or refusal of the amendment.

Factors to be taken into consideration while dealing with applications for amendments

On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration

while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date

of application.â€​

Coming back to the present case, as observed earlier, the plaintiffs failed to show before the court below as to how the present amendment is

necessary for the determination of the real question in controversy which is the basic test for allowing or refusing any amendment in the pleading even

if the same is filed before the commencement of the trial. I find no infirmity in the impugned order dated 06.06.2019 passed by the learned court below

as the aforesaid mistakes sought to be corrected/amended on behalf of the plaintiffs cannot be said to be a typographical error. The plaintiffs have

also not assigned any reason as to why the said amendment on behalf of the plaintiffs was sought nearly after three years of filing of the written

statement by the defendants denying any concern over the plot mentioned in Schedule-B of the plaint. Thus, the diligence on the part of the plaintiffs is

certainly absent in the case. No party can be allowed to make amendment in the respective pleading to overcome the infirmity in the same after filing

of any pleading by the other party. Moreover, by allowing amendment as sought by the plaintiffs, the entire structure of the suit land would change. It

is a settled principle of law that the courts have very wide discretion in the matter of amendments in the pleading, but such power must be exercised

judiciously. Although the court must not refuse bona fide, legitimate, honest and necessary amendments, however, at the same time, it should never

permit malafide, worthless and/or dishonest amendments.

Considering the said facts and circumstance, I see no reason to interfere in the impugned order dated 06.06.2019 passed by the Additional Civil

Judge (Jr. Division)-II, Gumla.

The writ petition is accordingly dismissed.