Om Kumari vs Kanta Kumari

Indira Banerjee, J.—In this revisional application under Article 227 of the Constitution of India, the petitioners being the defendants in Title Suit No. 81 of 2003 renumbered Title Suit No. 27 of 2012 pending in the Court of the Civil Judge, Senior Division have challenged an order dated 11th June, 2014 passed in the said Title Suit allowing the application of the plaintiff respondents for amendment of the plaint under Order 6 Rule 17 of the Code of Civil Procedure.

The plaintiff respondents and the defendant petitioners are the descendants of Janaki Kumari who had married twice. The plaintiff respondents were born of the wedlock between Janaki Kumari and Jai Chand, whereas the defendant petitioners and/or their predecessors in interest were born of the wedlock between Janaki Kumari and Kishen Chand. Both Jai Chand and Kishen Chand were sons of Gulab Chand.

The suit filed by the plaintiff respondents against the defendant petitioners inter alia for declaration of their title to the suit property, had been decreed by the learned Civil Judge, Senior Division. Against the decree the plaintiff respondents filed an appeal whereupon the 1st Appellate Court remitted the suit back to the trial court.

Challenging the aforesaid order of the 1st Appellate Court, the defendants/petitioners filed a 2nd appeal whereupon a Division Bench of this Court set aside the order of the 1st Appellate Court and Trial Court and directed the Trial Court to decide the suit afresh after framing two issues i.e., the issue of whether Gulab Chand was the original owner of the suit properties and whether Gulab Chand had any son other than Kishen Chand and Jai Chand.

The order of the Division Bench was passed on 3rd December, 2009. The Division Bench directed that the suit be decided within three months. Five years have elapsed. The suit is still pending.

An application for amendment filed by the plaintiff respondents on or about 17th January, 2011 was rejected by an order dated 14th June, 2011. Questioning the rejection the plaintiff respondents filed a civil revision in this Court being C.R. No. 32 of 2011 which was dismissed by this Court.

Thereafter, the suit was taken up for hearing and evidence also adduced. In course of evidence certain materials came on record which indicated that Janaki Kumari, mother of the defendant petitioners and the plaintiff respondents and/or their predecessors in interest, was the recorded holder of the suit property in dispute. The plaintiff respondents sought to amend the plaint in the light of the discovery that their mother was the recorded owner and not Jai Chand. The plaintiff respondents also sought amendment of the prayers in the plaint.

The learned trial court on consideration of the materials on record allowed the application for amendment for the ends of justice. The order of the trial court impugned before me is reasoned. The amendments are not barred by limitation. There is no such infirmity in the order that calls for interference in an application under Article 227 of the Constitution of India.

Mr. Prasanth, learned advocate for the petitioners, strenuously contended that the plaintiff respondents had earlier made an application for amendment which had been rejected and a revisional application questioning the rejection of the amendment application had also been dismissed by this Bench.

It, however, appears that the amendments sought now are not identical to the amendments that were sought to be made in 2011. The principles of res judicata and/or analogous principles are not attracted.

Under order 6 Rule 17 of the CPC a Court of law trying a suit has very wide powers in the matter of allowing amendments of pleadings and all amendments which will aid the Court in disposing of the matters in dispute are, as a rule, allowed, subject to the law of limitation, as held by the Supreme Court in K. Venkateswara Rao and Another Vs. Bekkam Narasimha Reddi and Others, .

It is the duty of the Court to allow amendment of pleadings, when it is necessary for the purpose of determining the real questions in controversy in the suit. It is a duty which is cast upon the Courts so that substantial justice may be done, for which the Courts exist. An order allowing amendment cannot ordinarily be the subject matter of challenge in a petition under Article 227 of the constitution of India.

Amendments, if considered necessary may be allowed at any time, even after commencement of the trial. An amendment that is considered necessary for just adjudication should not be declined only because allowing the amendment would delay the disposal of the suit.

This Court does not deem it appropriate to interfere with the order allowing the amendments. The amendments shall be carried out expeditiously and it will be open to the defendant petitioners to file their additional written statement dealing with the amendments. The suit shall be heard and disposed of expeditiously by conducting day to day hearing and in any case within three months from the date of communication of this order.

The civil revisional application is disposed of.

Later:

Ms. Dolly Sarkar prays for stay of operation of this order. Prayer for stay is considered and refused.