Panna Devi vs Harendra Shahi

Mungeshwar Sahoo, J.—Heard the learned counsel, Mr. Nagendra Rai appearing on behalf of the petitioner and the learned senior counsel, Mr. Sidheshwari Prasad Singh appearing on behalf of the respondents. This application under Article 227 of the Constitution of India has been filed by the plaintiff-petitioner challenging part of the order dated 20.9.2011 passed by the learned Sub-Judge-3, Gopalganj in title suit No. 127 of 1990 whereby the learned court below rejected the amendment application filed by the petitioner for amendment in the plaint in paragraph 3.

The learned counsel for the petitioner submitted that in paragraph-2 and 3(ka) of the plaint, he has categorically stated that after partition, the northern portion of plot Nos. 785 and 786 was allotted in favour of Upendra Lal and he was in possession of the same but by mistake, in paragraph 3, this northern portion has not been typed and, therefore, the amendment is necessary. According to the learned counsel, it is not withdrawing the admission rather it is the explanation and amendment was filed for removal of the confusion.

On the other hand, the learned senior counsel appearing on behalf of the respondents submitted that the amendment has been filed only with a view to delay the disposal of the suit and that the amendment is mala fide one. The learned counsel further submitted that there is no explanation as to why the amendment was not sought for earlier and the same has been filed at the time of argument of the case by the parties which were likely to be concluded. The learned counsel in support of his submission relied upon Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and Others, .

Perused the impugned order. The court below rejected the application on the ground that in fact, the plaintiff-petitioner is resiling from the admission in the plaint. The learned court below further held that there is no explanation as to why the application was not filed earlier and the application has been filed mala fidely after such a long period.

So far the decision relied upon by the learned counsel for the respondents is concerned, it appears that the suit was filed in the year 2006 i.e. after the amendment of the CPC and in that case, the Hon''ble Supreme Court found that at the time of filing of the suit, the plaintiff was aware of the transaction of 1989 but the plaintiff did not incorporate the said fact in the plaint. Therefore, it appears that in that case, by way of amendment, the plaintiff was seeking addition of some new fact in the suit which was instituted after insertion of proviso to Order 6 Rule 17, C.P.C. w.e.f. 1.7.2002.

From perusal of the plaint which has been annexed with the writ application, it appears that at paragraph-2 and 3(ka), the plaintiff specifically pleaded that in the northern portion of plot Nos. 785 and 786, Upendra Lal was in possession which is mentioned in Schedule-II of the plaint. In paragraph 3, this northern portion is not typed, therefore, the amendment was sought for. It is not the case that for the first time this fact is being tried to be introduced by way of amendment.

The Hon''ble Supreme Court in the case of J. Samuel and Others Vs. Gattu Mahesh and Others, , considered the provision of Order 6, Rule 17 regarding "typing mistake" and held that lack of due diligence and mistake committed does not come within the purview of a typographical error. The term "typographical error" is defined as a mistake made in the printed/typed material during a printing/typing process.

In the case of Gautam Sarup Vs. Leela Jetly and Others, , the Hon''ble Supreme Court has held that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. In the present case, as stated above, it is not the case of the plaintiff that what has been admitted by him in the plaint is being resiled by the amendment sought for rather it appears that in fact, the plaintiff is explaining the mistake committed in paragraph 3. It is his specific admission in paragraph 2 and paragraph 3(ka) that Upendra Lal was in the northern portion of these two suit plots. The plaintiff is not resiling from this fact.

So far the submission of the learned counsel for the respondents that the amendment application has been filed at a very belated stage is concerned, in the case of Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, , the Hon''ble Supreme Court has held that the courts have very wide discretion in the matter of amendment of pleadings but court''s power must be exercised judiciously and with great care. While deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments. Here, in the present case, it is not the case that in fact, the amendment sought for is not bona fide or it is not necessary or it is not legitimate.

In the case of Surender Kumar Sharma Vs. Makhan Singh, , the Hon''ble Supreme Court has held that the amendment of plaint although, filed at a belated stage is not liable to be rejected merely on the ground of delay if court finds that by allowing amendment application real controversy between the parties may be resolved. In the present case, the court below has rejected the application by saying that the amendment is mala fide or that it is belatedly filed without considering as to whether it is necessary for the decision of real controversy between the parties.

In view of the above settled proposition of law, it appears that the learned court below has wrongly not exercised a jurisdiction vested in it by law, occasioning failure of justice. It may be mentioned here that learned counsel for the plaintiff-petitioner submitted before this Court that he will not adduce any evidence even if the amendment is allowed. In view of the above facts, it cannot be said that there is any intention to delay the matter. In the result, this writ application is allowed. The impugned order is set aside. The amendment application filed by the petitioner for amendment in paragraph 3 of the plaint is allowed subject to payment of cost of Rs. 1,000/- to be paid by the plaintiff-petitioner to the defendants-respondents in the court below within one month from the production of this order before the court below.