Lal Babu Rai and Others vs Ramagaya Rai

Chakradhari Sharan Singh, J.—Heard learned counsel for the petitioners and learned counsel appearing on behalf of the respondent. The petitioners are aggrieved by the order dated 5.1.2011 passed by the Court of learned Sub-Judge-VIII, Chapra in Partition Suit No. 325 of 2006 whereby the application filed by the plaintiff/respondent under Order VI, Rule 17 has been allowed.

Assailing the impugned order, learned counsel for the petitioners has submitted that the application under Order VI, Rule 17 was allowed at a very belated stage when the hearing was practically over. He submits that a suit was filed in the 2006. In 2007 the plaintiff respondent No. 5 filed an amendment petition for amendment of the plaint which was allowed vide order dated 23.6.2007. Thereafter, again an application for amendment was filed which came to be allowed vide order dated 5.1.2011.

Learned counsel for the petitioners has submitted that impugned order is in violation of the spirit of proviso to Order VI, Rule 17 of the Code of Civil Procedure. She submits that there was absolutely no assertion in the amendment petition that in spite of exercise of due diligence, the fact sought to be brought by way of amendment, could not be brought on record earlier. She further submits that even in the impugned order there is no discussion as regards satisfaction of the Court that in spite of due diligence exercised by the respondent/plaintiff, the fact could not be brought on record earlier. She has relied upon a judgment reported in Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and Others, Referring to the judgments aforesaid, she submits that in the facts and circumstances of the case, amendment petition should not have been allowed after commencement of trial.

Learned counsel appearing on behalf of the respondent on the other hand, defending the impugned order, submits that learned Court below was well within its jurisdiction to allow the amendment petition in order to do complete justice. He further submits that the Court below has power to allow amendment in the pleadings which is discretionary in nature and should not be interfered by this Court in exercise of power under Article 227 of the Constitution of India unless such exercise is found to be wholly unreasonable and arbitrary. He submits that the impugned order is well-reasoned and it is not going to prejudice the petitioner in any manner. He thus submits that the impugned order does not require any interference. In support of his contention he has placed reliance upon following judgment Smt. Domni Devi Vs. Neuri Kueri and Others, Lal Chandra Agrawal Vs. Sri Rajkishore and Another,

Order VI, Rule 17 as amended in 2002 deals with amendment of pleadings and confers jurisdiction upon the courts to allow either party to alter or amend its pleadings at any stage of the proceedings. Proviso, however, requires that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party has not raised the matter before commencement of trial.

From the impugned order it appears that there is absolutely no consideration by the court below on the point as to whether the respondent/plaintiff in spite of due diligence could not have raised such facts prior to commencement of trial, which he wanted to introduce by way of amendment. Even in the amendment petition (Annexure-4), there is no such ground taken by the plaintiff/respondent. The judgment of this Court reported in Smt. Domni Devi Vs. Neuri Kueri and Others, will have no application in the present facts and circumstances of the case as the said judgment was passed in relation to a suit instituted prior to amendment in Order VI, Rule 17 in the year 2002. So far as judgment of this court reported in Lal Chandra Agrawal Vs. Sri Rajkishore and Another, is concerned, I am of the view that the same shall also not apply in the present facts and circumstance of the case as in that case subsequent events were sought to be brought on record by way of amendment. In the present, on the other hand, the facts which the respondent wanted to bring on record were well within his knowledge.

I am of the opinion, learned counsel for the petitioners is right in her submission that without satisfying the requirements of proviso to Order VI, Rule 17, the Court below should not have allowed the amendment petition filed by the respondent after commencement of the trial. It has been submitted at the bar that evidences of the parties in this case were over before the impugned order was passed and as such the said order cannot be sustained. In view of the above, the impugned order dated 5.1.2011 passed by learned Sub-Judge-VIII, Chapra, in Partition Suit No. 325 of 2006 is set aside. This application is allowed.