Raghu Sahu And Anr vs Prabha Devi And Ors

The present case is taken up through video conferencing.

The present petition has been preferred for quashing and setting aside the order dated 14.02.2020 passed by the Additional Judicial Commissioner-VII-cum Spl. Judge, SC/ST, Ranchi in Civil Misc. Application No. 352 of 2019 filed in Title Appeal No. 96 of 2010 whereby the application dated 13.12.2019 filed by the plaintiffs/appellants/petitioners under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure (in short "the CPC") seeking amendment of the plaint, has been dismissed.

The factual background of the case as stated in the civil miscellaneous application is that the petitioners along with the respondent no. 23 (proforma respondent herein) had filed a suit being Title Suit No. 01 of 2004 for claiming their right, title and interest over the suit property pertaining to plot Nos. 3117 and 3118, Khata No. 1, village - Ratu, District - Ranchi against the respondent nos. 01 to 22 (defendants in the suit). It was stated in the said suit that the suit property was originally recorded in the name of Kamal Nath Tiwary and Gajadhar Tiwari who settled 2.01 acres land appertaining to plot nos. 3117 and 3118 under khata no. 01 of village Ratu to one Gopinath Singh and after the death of Gopinath Singh, his sons namely Raghunanadan Singh and Janak Singh transferred the said landed property to the ancestors of the petitioners. However, the defendants/respondents with a view to disturb the possession of the petitioners contested the suit by filing their separate written statements stating that Gopinath Singh was a Sikmidar of the suit land under Kamalnath Tiwari and Gajadhar Tiwari and after his death, Kamalnath Tiwari resumed the possession of the suit land. He subsequently died leaving behind his sole son Kedarnath Tiwari who died leaving behind his son Deo Ratan Ram Tiwari (respondent no. 22 in this case). Thereafter, his son Deo Ratan Ram Tiwari transferred the said landed property to different purchasers i.e. the defendatns in the aforesaid title suit. The suit was ultimately dismissed vide judgment dated 02.03.2009 (decree dated 17.03.2009). Aggrieved thereby, the petitioners preferred appeal being Title Appeal No. 96 of 2010 and during the pendency of the said appeal, they preferred M.C.A No. 352 of 2019 seeking amendment of plaint to the effect that the word "Hukumnama" written in the first line of paragraph- 2 of the plaint after the word "of" and before the word "dated" may be substituted with the word "sada deed of sale". However, the said application was dismissed vide impugned order dated 14.02.2020 passed by the appellate court.

The learned counsel for the petitioners submits that the appellate court while rejecting the application of the petitioners filed under Order VI Rule 17 read with Section 151 of CPC failed to appreciate the ocular evidence of P.W.4 who had specifically stated that the suit land was sold by the recorded tenant to Gopinath Singh on consideration amount of Rs. 85/-. It is further submitted that the said sale deed was also marked as exhibit-2 in the suit. The amendment sought by the petitioners are formal in nature and the same is necessary for the determination of the real question in controversy between the parties and as such the appellate court ought to have allowed the same. It is also submitted that the mistake in the plaint was a bonafide one and there is no impediment to correct it even at the appellate stage. It is submitted that if the said application is allowed, no prejudice would be caused to the respondents

Heard the learned counsel for the petitioners and perused the materials available on record. The petitioners have sought amendment in the plaint at the appellate stage.

Before coming to the merit of the case, it would be relevant to quote the provisions of Order VI Rule 17 of CPC as well as to consider the judicial pronouncements made by the Hon'ble Supreme Court on the scope and extent of allowing an amendment application.

"Order VI Rule 17-Amendment of pleadings.--.--The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided 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 could not have raised the matter before the commencement of trial."

In the case of Vidyabai & Others Vs. Padmalatha & Another reported in (2009) 2 SCC 409, the Hon'ble Supreme Court has held as under:-

"10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:

"Provided 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 could not have raised the matter before the commencement of trial.

It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial."

It is a trite law that the court has the power to allow an application for amendment at any stage of the suit which is necessary for the purpose of determining the real question in controversy between the parties. However, by way of proviso, certain restrictions have been put in such cases where amendment applications are filed after commencement of the trial. Thus, the stages of the cases have been divided in two parts so as to deal with the amendment application- first is before the commencement of trial wherein an application for amendment may be allowed by the court to determine the real issue in controversy and the second is after the commencement of the trial where while considering the amendment application, the court is required to be satisfied that the party seeking amendment has duly explained that in spite of due diligence, he/she could not raise the matter before commencement of the trial.

In the case in hand, the petitioners have neither pleaded nor averred any sufficient explanation to meet the delay caused in making the amendment application. Though an application for amendment can be allowed even after commencement of the trial, the petitioners neither averred nor explained before the learned appellate court that in spite of due diligence, he could not amend the plaint before the commencement of the trial. The learned appellate court having taking into consideration the nature of the amendment sought, held that the judgment of the trial court is based on the averment made by the petitioners in the plaint that the land was settled in the year 1943 in favour of Gopinath Singh by virtue of 'Hukumnama' and now the petitioners are trying to change the nature of the suit by seeking amendment to change the word "Hukumnama" which is not permissible at such a belated stage. The learned counsel for the petitioners while putting reliance on the deposition of P.W.4, annexed as Annexure-5 to the present Civil Misc. Petition, has contended that the said sale deed was marked as exhibit-2 during the trial. However, the said contention of the learned counsel for the petitioners cannot be appreciated for allowing the petition seeking amendment filed under Order VI Rule 17 read with Section 151 of CPC as the petitioners have failed to show sufficient explanation with respect to the delay caused in filing such application which is a mandatory condition for allowing any application for amendment filed after commencement of trial.

In view of the aforesaid factual and legal position, I see no reason to interfere with the order dated 14.02.2020 passed by the Additional Judicial Commissioner-VII-cum Spl. Judge, SC/ST, Ranchi in Civil Misc. Application No. 352 of 2019 filed in Title Appeal No. 96 of 2010.

The Civil Miscellaneous Petition is, accordingly, dismissed.