Deo Nandan Choudhary and Another vs Smt. Gulabi Devi and Others

Chakradhari Sharan Singh, J.—Heard learned counsel for the petitioners. It seems that notices have been validly served on the respondents and they entered appearance through the learned counsel by way of vakalatnama but on three consecutive dates there has been no representation on their behalf and thus, I am left with no option but to proceed in this matter on the basis of pleadings in the application and submissions made on behalf of the petitioners.

Petitioners are aggrieved by the order dated 15.11.2010 passed by learned Sub-Judge - Vth, Patna City in T.S. No. 101 of 2004, whereby he has rejected a petition filed by the petitioners/plaintiffs under Order VI Rule 17 of the CPC for amendment in the plaint.

By way of amendment the plaintiffs wanted to add the following in paragraph 5 of the plaint:--

It is further submitted that to the adjacent north of the land purchased in the name of plaintiff''s mother 8 Dec. of the land of plot No. 79 was previously acquired by Ganauri Choudhary the deceased father of the plaintiff by settlement dated 5th Asadh 1352 Fasli from the ex-landlord Bindeshwari Pd. Singh Mauar son of Jodhan Prasad Singh Mouar and after vesting of the estate in the State of Bihar, Ganauri Choudhary became raiyat under the State of Bihar and he began to pay rents to the State against due receipts. He had also paid rent to the ex-landlord against due receipts since the plaintiff''s father was already owner of this 8 dec. of land he for expansion of this Estate thought it to purchase the disputed portion (the suit plot) 6 dec. from Mahabir Pasi S/o. late Gyani Pasi. The plaintiff''s house has been standing over the said 8 Dec. of land acquired under Hukumnama and plaintiff have fenced the disputed portion of plot No. 79 under boundary wall.

They also sought to substitute the word "south" by "west" in Schedule-I of the plaint against which Ayodhya Sah is mentioned.

Learned counsel for the petitioners submits that the proposed amendment is formal in nature and will not change the nature of the suit Referring to paragraph-4 of the amendment petition, learned counsel for the petitioners has submitted that the petitioners had explained the circumstances before the Court below in which the amendment petition could not be filed before commencement of the trial. He further submits that the plaintiffs/petitioners in Schedule-I of the plaint mentioned their land adjacent to the north of the disputed land mentioned at Schedule-I of the foot of the plaint but out of inadvertence this fact was mentioned in the body of the plaint about its acquisition which is now required to be brought on record as mentioned above. He submits with reference to the impugned order that applying the proviso to Order VI Rule 17 of the Code of Civil Procedure, learned Court below dismissed their amendment petition on erroneous consideration that such amendment could not be brought after commencement of trial.

It has been submitted that the northern boundary of the disputed plot has been described as ditch in fact belonged to the plaintiff''s father Ganauri Choudhary and the suit property was purchased adjacent to the father''s property subsequently. As the defendants are trying to take undue advantage of sale deed in the name of Bakash Mian and merely in order to explain the northern boundary of the disputed property the petitioners were required to bring the amendment as sought for. He submits that such amendment is not going to change the nature of the suit nor the relief sought for by them.

He submits that in the interest of justice these facts are essential to be brought on record. In order to deal with the proviso to Order VI Rule 17 of the Code of Civil Procedure, learned counsel for the petitioners has relied upon Supreme Court judgment reported in Usha Devi Vs. Rijwan Ahamd and Others, to contend that in exceptional circumstance such amendment can be allowed. The Supreme Court in the case of Usha Devi (supra) relying upon another judgment reported in (2005) 13 SCC 89 (Sajjan Kumar v. Ram Kishan) and took the view that if the amendments were necessary for the purpose of bringing on record the real question in controversy between the parties such amendment can be allowed at any stage of trial.

This Court also in the case of Smt. Domni Devi Vs. Neuri Kueri and Others, held that proviso to Order VI Rule 17 of the CPC is no bar for the Courts to allow amendment even after the trial has commenced.

In view of the above and in view of the fact that there is no opposition by the respondents in the present case, I am of the view that learned counsel for the petitioners is right in his submission that the need for amendment arose only to explain what was already there in Schedule to the plaint describing boundaries of the suit property. In the light of the stand taken by the defendants that the property adjacent to the suit property on the northern side belonged to one Bakash Mian, whereas according to the petitioners, the said plot on the northern side of the suit property belonged to the petitioners'' father, there was necessity to introduce this fact by amendment to explain how ''NIZ'' was mentioned on the Northern boundary of suit land.

Accordingly, I hold that the proposed amendment was necessary for the purpose of bringing on record the real dispute between the parties. Though explanation for filing amendment belatedly is not very convincing, but I find that in the facts and circumstances of the case the amendment should have been allowed in the given facts and circumstances of the case. In view of the above, this application is allowed. The impugned order dated 15.11.2010 is set aside. Let necessary amendment as sought for in the application dated 17.9.2010 be incorporated in the plaint.