Shravan Kumar Gupta And Ors vs Usha Devi And Ors

This writ petition is under Article 227 of the Constitution of India whereby and whereunder the order dated 16.05.2016 passed in Title Suit No.13 of 2013, is under challenge by which the petition filed under Order VI Rule 17 of the C.P.C. has been allowed wherein the plaintiffs have been allowed to incorporate in the plaint by making addition at paragraph-5 to the effect that "as the said properties was purchased from joint family fund of a Hindu undivided family" and in relief No.1, in place of word "these", the same may be deleted and "Deeds" may be substituted and thereafter this line may be added "and the entire property was not Partitioned properly and acquired from joint family fund".

The trial Court has allowed the same, holding therein that the trial has not commenced, therefore, no prejudice would be caused which has been assailed by way of instant writ petition.

Mr. J.P. Jha, learned senior counsel appearing for the petitioners has raised issue that the partition suit has been filed earlier to this suit which was decreed on compromise, thereafter one of the co-sharers has disposed of the property in favour of the defendants and hence, the decree which has been passed by way of compromise in the said partition suit, cannot be made subject matter of the instant suit but the trial Court having not appreciated the aforesaid aspect of the matter while allowing the petition filed under Order VI Rule 17 of C.P.C., as such is not sustainable in the eye of law.

Mr. Arvind Kumar Choudhary, learned counsel appearing for the respondents has submitted by referring to the object and scope of Order VI Rule 17 that the provision is very explicit and express that if the trial has not commenced, amendment needs to be allowed in order to avoid multiplicity of proceeding.

Further refuting the arguments of learned senior counsel for the petitioners, has submitted that so far as the question of decree, passed in the partition suit on compromise, the said issue since pertains to the merit which can well be agitated in course of trial for getting it answered on adjudication of the issues and hence, the amendment as has been sought for, needs to be allowed.

Having heard the learned counsel for the parties and on appreciation of their rival submissions and after going across the pleadings made in the writ petition as also the finding recorded therein, deem it fit and proper to first refer the provision of Order VI Rule 17 of C.P.C., which reads hereunder as :

[17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings 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.]

The scope and object of Order VI Rule 17 of C.P.C. clearly stipulates that the amendment either in the plaint or in the written statement can be allowed at any stage of the suit, subject to the condition that the nature of the suit may not be allowed to be changed but once the trial has commenced, the amendment can be allowed subject to certain conditions i.e., the nature of the suit is not to be changed and the amendment which is being sought for may not subject to period of limitation or if the amendment is being sought cannot be allowed if it will lead to resiling from the statement either made in the plaint or in the written statement.

The finding recorded in the impugned order has been scrutinized on the basis of the aforesaid legal position wherefrom it is the admitted fact that the trial had not yet been commenced on the day when the petition under Order VI Rule 17 was filed.

The suit is for declaration of right and title seeking therein the following reliefs :

i) A declaration that the Sale Deeds bearing No.33 dated 25.01.2007 of Registration office Jamtara and Sale Deed No.35 dated 08.02.2012 of Registration office Jamtara are illegal void not sustainable as Ashok Kumar Khatik was not capable to execute those these.

ii) On the above declaration a decree may be passed in favour of the Plaintiffs and against the Principal Defendants.

It is evident from the plaint which has been annexed as Annexure-2 that the plaintiffs have made out a case for getting the aforesaid relief in their favour by making pleading to the effect that the landed property in question had been purchased through a registered deed of sale bearing Deed No.2517 from its rightful owner on 05th July, 1971, which was purchased from the common stock and common income of the family and it is the father Gabbu Lal Khatik who as karta of the family has purchased that properties in the name of his wife and two sons, therefore, the case has been made out that the said property has been purchased from the common stock and common income of the family and basis upon the said stand, the suit has been filed.

The defendants, who are the petitioners herein has put their appearance and filed the written statement before the trial court denying the stand taken by the plaintiffs in the plaint.

The plaintiffs have filed a petition under Order VI Rule 17 of the C.P.C. after filing of the written statement seeking therein leave of the trial court to allow them to make certain amendments in the plaint to the effect as referred above which has been allowed by the order dated 16.05.2016 which is impugned in this writ petition on the grounds as stipulated hereinabove

As has been referred hereinabove, the principle to be considered by the court of law while allowing an amendment petition under Order VI Rule 17 of the C.P.C., admittedly herein the trial of the suit has not yet commenced as would appear from one of the reasons in allowing the said amendment petition.

Since the trial was not commenced on the day when amendment petition was filed, therefore, there is no question of causing any prejudice to the defendants since, they will get an opportunity to rebut the same.

The other ground which is being reflected in the impugned order that its nature as to whether if the said amendment would be allowed can it change the nature of the suit as would appear from the pleading made in the plaint that stand taken by the plaintiffs that the property in question has been purchased from the common stock and common income of the family and therefore, the amendment has been sought for by making addition in paragraph 5 to the effect that "as the said properties was purchased from joint family fund of a Hindu undivided family" and further to replace the word "these" from the relief No.1 to that of "Deeds" with a further addition of words "and the entire property was not Partitioned properly and acquired from joint family fund".

The defendants have altogether taken different stand in the written statement by taking the ground that the property in question has not been purchased from the fund of joint Hindu family rather it is the self-owned property.

The question herein is that when the trial was not commenced on the day when the amendment petition was filed and keeping that fact into consideration, the amendment has been allowed and the only question of prejudice will come as to whether if the said amendment would be allowed which is not contrary to the stand taken in the plaint, can it be said to change the nature of the suit and can it prejudice the case of the petitioners.

The question of change in the nature of suit would come if the amendment which is being sought for is altogether different to that of the nature of the relief sought for, here, it is evident from the plaint that the declaratory suit has been filed for declaring the registered sale deed dated 25.01.2007 bearing sale deed No.33 and registered sale deed dated 08.02.2012 bearing sale deed No.35 at Registration Office, Jamtara are illegal, void, not sustainable as Ashok Kumar Khatik was not capable to execute, the said prayer has been made on the basis of the stand taken by the respondents in the plaint at paragraph-3 that the property was purchased from the common stock and common income of the family and the Court needs to adjudicate on the basis of the evidence to be produced by the plaintiffs to substantiate that the property in question has been purchased from the common stock and common income of the family and if in addition to that statement the word "as was purchased from the joint family fund of Hindu undivided family" would be added, the nature of suit having no effect upon the relief sought for in the prayer made in the plaint, therefore, so far as first condition i.e. the amendment if allowed, would change the nature of suit, is not attracted in this case.

So far as the question of prejudice is concerned, since the trial had not commenced the day when the amendment petition was allowed, therefore, there is no question of causing any prejudice to the petitioners since they will get an opportunity to rebut the stand taken by them and to that effect they have already taken stand in their written statement.

In that view of the matter and for the reasons stated hereinabove, the impugned order does not warrant any interference by this Court under its revisional power conferred under Article 227 of the Constitution of India.

Accordingly, the writ petition fails and is dismissed.

However, the petitioners will be at liberty to take their defence in course of the trial.