Sahimuddin Miyan @ Sahim Miyan vs Babu Tauhid Ansari

Sanjay Kumar Dwivedi, J

Heard Mr. Jitesh Kumar, learned counsel appearing for the petitioner and Mr. Shivam Kumar along with Mr. Vibhor Mayank, learned counsel appearing for the opposite party No.1.

Notice upon the opposite party No.2 is deemed to be validly served.

By order dated 27.11.2024 the notice upon the opposite party Nos.3 and 4 has already been dispensed with by the co-ordinate Bench as they are the proforma defendants.

This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 13.08.2024 passed by learned Civil Judge (Sr. Division)-1st Latehar passed in Misc. Civil Application No.63 of 2024 arising out of Original (Title) Suit No.58 of 2018 whereby the learned Court has been pleased to allow the application filed by the plaintiff under Order VI Rule 17 of the CPC for amendment in the plaint.

Learned counsel appearing for the petitioner submits that the Original Suit No.58 of 2018 under Section 26 of CPC was instituted by the plaintiff/opposite party No.1 against the defendants praying therein to declare the right, title, interest and possession acquired by the plaintiff over the suit land through registered Sale Deed No.672 dated 28.03.1985. He submits that a petition has been filed at the stage of argument by the plaintiff/respondent for amendment in the relief para that possession of the plaintiff be confirmed over the suit land. He submits that the said amendment was allowed by the learned Court and that is not in accordance with law. He submits that the entire nature of suit is being changed, as such the said order may kindly be set aside. He further submits that the due diligence is also not done by the plaintiff/respondent.

Learned counsel appearing for the opposite party No.1 submits that a formal amendment is sought to be made in the relief portion and averments to that effect is already there in the plaint in para 11, 14 and relief portion. He submits that by way of allowing the said amendment the nature of suit is not being changed. He relied in the judgment of Hon’ble Supreme Court in the case of Life Insurance Corporation of India versus Sanjeev Builders Private Limited and Another reported in (2022) 16 SCC 1, wherein at paragraph No.71.10 it has been held as under :-

71.10) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

Looking into the plaint annexed with the CMP, it transpires that averment to that effect is there in paragraph No.11 and 15 that the plaintiff is in possession of the property. In the relief portion also the prayer is made that the declaration of right, title, interest and confirmation of possession by way of said amendment only it has been tried to be added in the relief portion to confirm the plaintiff possession over the suit land.

In light of the above, it transpires that only a formal amendment is sought to be made in the plaint and in the main prayer.

In the case of Life Insurance (supra) relied by learned counsel appearing for the opposite party in paragraph No.71.9 it has been further held that the delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision can be made and further to avoid the multiplicity of the litigation, if the prayer is formal in nature that is required to be allowed.

In view of the above, the Court finds that there is no illegality in the impugned order, as such this petition is dismissed.