Nabab Sah vs Mainudin Sah

Heard learned counsel for the parties.

This Civil Miscellaneous Application has been filed under Article 227 of the Constitution of India against part of the order dated 26.04.2018 passed by learned Sub-Judge-I, Gopalganj in Title Suit No. 358 of 2005 by which the Court below has partly rejected the amendment application with regard to gift deed dated 20.08.1987.

Brief facts of the case are that the petitioners filed Title Suit No. 358 of 2005 for partition of suit property and delivery of possession. The written statement was filed by defendant No. 1 on 16.11.2009. On 18.04.2018, the petitioners filed amendment application under Order 6 Rule 17 CPC which was partly allowed by allowing the plaintiffs to correct the Kheshra No. as 552 in place of 252 but rejected the prayer of adding some of the facts regarding the gift deed dated 20.08.1987.

Learned counsel for the petitioners submits that addition of the paragraph in the plaint by proposed amendment will not change the contents of gift deed dated 20.08.1987. The amendment sought for was only to bring relevant facts to the notice of the Court for proper adjudication of the case. The amendment sought for in the plaint shall not change the nature of suit and no prejudice would be caused to the defendants if the said amendment be also permitted to be incorporated in plaint by the petitioners.

Per contra, learned counsel for the respondents submits that the petitioners wanted to incorporate the facts in the plaint by the amendment petition amending the averments made in the gift which is not permissible in the facts and circumstances of this case. The suit is filed for partition and the testator of the said gift has already been died and the averments/ contents made in the gift deed cannot be amended by incorporating those facts in the plaint. He has further submitted that the Court has already allowed the typing mistake. In view of the proviso to Order 6 Rule 17 which was incorporated in 2002, the petitioners have not shown any due diligence and filed the said amendment petition at the stage of final argument without any valid reason and with mala fide to delay the proceeding.

Learned counsel for the respondents further submits that the error in registered gift deed like area of the property, its dimensions, location or survey number can be rectified through execution of a supplementary document called rectification deed after mutual consent of all the parties to the main deed and if some of the parties to the agreement do not agree to such rectification of the executed documents, the aggrieved other party may file a suit before a Court under Section 26 of Specific Relief Act, 1963. The law provides for relief to parties in case the real intention of the party is not properly reflected in the documents executed because of a bona fide mistake of fact.

Having heard the learned counsel for the parties and on perusal of the material on record and going through the impugned judgment, it appears that the Court has already allowed the amendment of the typing mistake and also permitted the petitioner to argue these facts during the argument and accordingly, partly allowed the amendment petition and partly disallowed the addition of the averments/contents of gift deed. The learned Court below has also stated in the impugned order that the testator of gift-deed had died and in paragraph 13 of the written statement, it was already stated that the gift-deed was not executed by Gafar Sah in which he has stated that he has no son while he has two sons and petitioners have the knowledge of the same since the year 2009. The Court below also observed that in view of Section 91 of the Indian Evidence Act, in case of registered document, no oral evidence is required to be given for proof of those matters except the document itself.

The object of Order 6 Rule 17 CPC is that material facts and necessary particulars must be stated in pleadings so that the Court should try the merits of the case that comes before it and should allow the amendments that may be necessary for determining the real question in controversy between the parties. Proviso to Order 6 Rule 17 added in terms of Code of Civil Procedure (Amendment) Act, 2002, which provides that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter, for which amendment is sought, before the commencement of the trial. In the present case, it cannot be said that the amendment sought for is necessary for the purpose of determining the real questions in controversy between the parties. There is also no explanation of due diligence for bringing the amendment at the stage of final argument. The Court below has passed the reasoned order.

In view of the aforesaid facts and circumstances, this Court does not find any illegality or error in the impugned order to interfere under its supervisory jurisdiction under Article 227 of the Constitution of India.

This Civil Miscellaneous Application is, accordingly, dismissed.