JAIDEO KUMAR @ JAIDEO MAHTO vs SMT. GAYATRI SINGH

I.A No. 2904 of 2008

1. This application has been filed seeking substitution of the respondent no. 2 who died on 24.10.2004 by heirs and legal

representatives namely, (I) Savitri Devi, wife of late Gopal Rout, (II) Manoj Rout, son of late Gopal Rout and (III) Bina Kumari, daughter of late

Gopal Rout, all residents of Mohalla- Jodadih, P.O and P.S.-Chas, district-Bokaro.Â

For the reasons stated in this application, I.A. No. 2904 of 2008 is allowed.Â

Let necessary correction be done during the course of the day.   Â

   W.P.(C) No. 6076 of 2007

Aggrieved of order dated 23.08.2007 passed in Title Suit No. 54 of 1993, the petitioners who are defendants in the suit have approached this

Court. Â

Title Suit No. 54 of 1993 was instituted for a decree of declaration of the plaintiff’s right, title and interest over the suit schedule property and

for confirmation of her possession over the suit land. A decree of declaration that sale deed dated 03.11.1983 executed by the defendant nos. 2 and 3

in favour of defendant no.1 is void, illegal and inoperative in law and hit by Benami Transcation Act, is another relief sought by the plaintiff in the

suit. The plaintiff has pleaded that she purchased a piece of land admeasuring about 0.17 acres in Plot No. 358 comprised within

Khata         No. 25 at village-Bhawanipur, P.S- Chas, district-Bokaro from defendant nos. 2, 3 and 4 by a sale deed dated

12.09.1979 for a valuable consideration and thereafter she got the land mutated in her name, in respect of which correction slip was issued by the

Circle Officer, Chas. In paragraph no. 4 of the plaint, the plaintiff has asserted that the aforesaid 0.17 acres land in Plot No. 358 was amalgamated

with another piece of land admeasuring about 0.19 acres in Plot No. 814 in the said village, in the month of December 1979. This another piece of land

is the subject matter of the suit. It is pleaded that the defendant nos. 2 and 3 attempted to take possession of this 0.19 acres land under Plot No. 814

and, in fact, they sold this land through two sale deeds both dated 03.11.1983 to defendant no.1. In the pending suit an application under Order VI Rule

17 C.P.C for the following amendments in paragraph 4, 9 and 12 was filed on 22.09.2005:Â

 “1.   That, in para 4 of the plaint after the word “landâ€​ and before the word “and startedâ€​ the following be added:

 “on the assurance that the same will be given to the plaintiff and the same is in utility of plaintiff from berofe.â€​Â

That in para 9 of the plaint the word “easementâ€​ be deleted and in its place “use and occupationâ€​ be added. Â

That, in para 12 of the plaint after the word “complication†and before the word “the plaintiff†the word “and also due to ill advice†be

added.

That in the last of para-12 the following be added “through the same was not needed as the plaintiff has already perfected her title by adverse

possession.â€​

By the impugned order dated 23.08.2007 while allowing amendment in paragraph no. 12 of the plaint, the trial Judge has rejected the proposed

amendments in paragraph nos. 4 and 9. The petitioners are aggrieved of amendment in paragraph no.12 of the plaint.  Â

Contending that the amendment in paragraph no. 12 would change the nature of the suit, Mr. V. Shivnath, the learned Senior counsel for the

petitioners submits that amendment in the pleadings for incorporating a new story cannot be permitted.  Â

Order VI Rule 17 C.P.C confers powers upon the Court to permit amendment in the pleadings, and by now it is well-settled that amendment in the

pleadings can be permitted at any stage of the suit, even at the stage of final hearing. However, proviso to Order VI Rule 17 C.P.C provides that

amendment in the pleadings shall not be permitted if trial in the suit has commenced. This statutory restriction contained under proviso to Order VI

Rule 17 C.P.C has been held mandatory. By judicial pronouncement, however, exceptions to this statutory restriction under Order

VIÂ Â Â Â Â Â Â Â Â Â Â Â Â

Rule 17 C.P.C have been carved out. In “North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead) by LRS.â€Â reported

in (2008) 8 SCC 511, it has been held that if the proposed amendment is necessary for deciding the real controversy in the suit, amendment shall be

allowed; only restriction in law is that the proposed amendment shall not cause prejudice to the other side and that amendment in the pleadings is not

necessitated on account of default on the part of the party seeking amendment. Â

A bare reading of the plaint averments would disclose that the plaintiff has claimed her right over 0.19 acres of land comprised under Plot No.

814 by virtue of amalgamation of the said land with 0.17 acres land in Plot No. 358 purchased by her through sale deed dated 12.09.1979. Plaintiff has

asserted her title over 0.19 acres land by virtue of adverse possession. Now, the plaintiff seeks to amend paragraph no.12 of the plaint by asserting

that the pre-emption case was filed due to ill legal advice. In para 12 of the plaint, the plaintiff has averred as under :Â

“12.  That, to avoid future litigations and complications, the plaintiff filed a petition under section 16(3)(1) of the Bihar Land Reforms (Fixation

of Ceiling Area and Acquisition of Surplus Land) Act, 1961, claiming a right of pre-emption with respect to the lands in suit being an adjacent raiyat

holding land adjacent west of the land in suit.â€​Â

Through amendment in paragraph no. 12, the plaintiff seeks to fill up lacuna in her case, in as much as, her possession over 0.19 acres land

through adverse possession runs counter to her right to pre-emption. The application for amendment was filed at a stage when the plaintiff had

examined seven of her witnesses. The amendment in paragraph no. 12, if permitted, would bring surprise and prejudice to the defendants. In my

opinion, the trial Judge has exercised a jurisdiction which is not vested in it when it has permitted amendment in paragraph no. 12 of the plaint. Â

Accordingly, this part of the impugned order dated

23.08.2007 is set-aside. The writ petition is allowed.Â

Interim order dated 10.12.2007 stands vacated.

Let a copy of the order be transmitted to the trial court through FAX.