Seerat Bano vs Md. Shafeque

S.N. Hussain, J.—Heard learned counsel for the petitioner who is defendant in Title Suit No. 50/ 2001 which was filed by the opposite party for recovery of possession and injunction etc. The petitioner is aggrieved by order dated 13.4.2005 passed in the aforesaid suit by which the learned Munsif 2nd Bhagalpur has allowed the petitioner filed by the plaintiff under Order 6 Rule 17 of the C.P.C. for amendment of the plaint.

Learned counsel for the petitioner submits that two amendments are sought by the said amendment petition out of which the defendant has no objection with regard to the first amendment mentioned in paragraph 2 of the amendment petition but with regard to the second amendment mentioned in paragraph 3 of the amendment petition he submits that in paragraph 3 of the plaint the plaintiff has based his claim on the sale-deed dated 9.6.1973 whereas by the said amendment he wants to add a further paragraph now basing his claim on the ''Yadast or oral gift dated 4.3.2003 hence he cannot be allowed to take contradictory stand in the same plaint. He further submits that the suit was filed in the year 2001 whereas the Yadast of oral gift is dated 4.3.2002 which is during the pendency of the suit due to which neither the said Ekrarnama can be of any legal help to decide his title nor he could be allowed to take the help of such documents and produce evidence with regard thereto in support of his claim. Hence he submits that the impugned order of the learned Court below is illegal, arbitrary, perverse and is fit to be set aside.

On the other hand, learned counsel for the opposite party opposes the contention of the learned counsel for the petitioner and submits that mere amendment will not mean allowing the claim of the plaintiff and the entire matter has to be considered at the time of final adjudication.

After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that the impugned order of the learned Court below is not illegal and without jurisdiction as it is well settled by the Hon''ble Apex Court in the case of Prem Bakshi and Others Vs. Dharam Dev and Others, that the amendment of pleadings whatever be the nature would not even remotedly cause failure of justice or irreparable injury to any party as by allowing such amendment the claim of the plaintiff is not being allowed. In such circumstances the defendant petitioner will be at liberty to contest/contradict the claim of the plaintiffs for filing an additional written statement or by way of amendment in the written statement raising all the points which he has contended before this Court and the same will be considered by the Court below at the time of final adjudication of the suit. With the aforesaid direction this civil revision is disposed of.