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Judgment
Aggrieved of order dated 23.08.2007 passed in
Title Suit No. 54 of 1993, the petitioner who is plaintiff in the suit has approached this Court. Â
2.   Title Suit No. 54 of 1993 was instituted for a decree of declaration of the plaintiff’s right, title and interest over the suit schedule
property and for confirmation of her possession over the suit land. A decree of declaration that sale deed dated 03.11.1983 executed by the defendant
nos. 2 and 3 in favour of defendant no.1 is void, illegal and inoperative in law and hit by Benami Transcation Act, is also a relief sought in the suit.Â
The plaintiff has pleaded that she purchased a piece of land admeasuring about 0.17 acres in Plot No. 358 comprised within Khata No. 25 at
 village-Bhawanipur, P.S- Chas, district-Bokaro from defendant nos. 2, 3 and 4 by a sale deed dated 12.09.1979 for a valuable
consideration and thereafter she got the land mutated in her name, in respect of which correction slip was issued by the Circle Officer, Chas. In
paragraph no. 4 of the plaint she has asserted that the aforesaid 0.17 acres land in Plot No. 358 was amalgamated with another piece of land
admeasuring about 0.19 acres in Plot No. 814 in the said village, in the month of December 1979. This another piece of land is the subject matter of
the suit. It is pleaded that the defendant nos. 2 and 3 attempted to take possession of this 0.19 acres land under Plot No. 814 and, in fact, they sold this
land through two sale deeds both dated 03.11.1983 to defendant no.1. In the pending suit, an application under Order VI Rule 17 C.P.C for the
following amendments in paragraph 4, 9 and 12 was filed on 22.09.2005:
 “1.   That, in para 4 of the plaint after the word “land†and before the word “and started†the following be added:
“on the assurance that the same will be given to the plaintiff and the same is in utility of plaintiff from berofe.â€Â
That in para 9 of the plaint the word “easement†be deleted and in its place “use and occupation†be added. Â
That, in para 12 of the plaint after the word “complication†and before the word “the plaintiff†the word “and also due to ill advice†be
added.
 That in the last of para-12 the following be added “through the same was not needed as the plaintiff has already perfected her title by adverse
possession.â€
By the impugned order dated 23.08.2007 while allowing amendment in paragraph no. 12 of the plaint, the trial Judge has rejected the amendments in
paragraph nos. 4 and 9. The petitioner is aggrieved of rejection of the amendments in paragraph nos. 4 and 9. Â
Contending that the amendments in paragraph nos. 4 and 9 would not change the nature of the suit, Mr. Ayush Aditya, the learned counsel for the
petitioner submits that rejection of the amendment application observing that the proposed amendments would incorporate a new story in the plaint is
apparently illegal. Â
Order VI Rule 17 C.P.C confers powers upon the Court to permit amendment in the pleadings, and by now it is well-settled that amendment in the
pleadings can be permitted at any stage of the suit, even at the stage of final hearing. However, proviso to Order VI Rule 17 C.P.C provides that
amendment in the pleadings shall not be permitted if trial in the suit has commenced. This statutory restriction contained under proviso to Order VI
Rule 17 C.P.C has been held mandatory. By judicial pronouncement, however, exceptions to this statutory restriction under Order VI Rule 17 C.P.C
have been carved out. In “North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead) by LRS.â€Â reported in (2008) 8 SCC
511, it has been held that if the proposed amendment is necessary for deciding the real controversy in the suit, amendment shall be allowed; only
restriction in law is that the proposed amendment shall not cause prejudice to the other side and that amendment in the pleadings is not necessitated on
account of default on the part of the party seeking amendment. Â
A bare reading of the plaint averments in Title Suit No. 54 of 1993 would disclose that the plaintiff has claimed her right over 0.19 acres of land
comprised under Plot No. 814 by virtue of amalgamation of the said land with 0.17 acres land in Plot No. 358 purchased by her through sale deed
dated 12.09.1979. She has asserted her title by virtue of adverse possession over 0.19 acres land. Now, she seeks to amend paragraph no.4 of the
plaint by asserting that 0.19 acres land was given to her which is in use of her. The proposed amendment apparently is contrary to her stand taken in
paragraph no. 6 of the plaint, whereunder she has asserted that she has perfected title over 0.19 acres land after 12 years. However, through
amendment in paragraph no. 4 the plaintiff seeks to assert possession over 0.19 acres land through permissive possession. In the above facts, the trial
Judge has rightly declined the aforesaid amendment in paragraph no. 4 of the plaint. Â
In paragraph no. 9 of the plaint, the plaintiff has asserted that she got the right of “easement†over the suit land by virtue of the sale deed dated
12.09.1979 executed by defendant nos. 2 to 4 in her favour and she is in possession over the suit land since 1979, uninterruptedly. Except the
expression “easement†appearing in paragraph no. 9, stand of the plaintiff in this paragraph is in consonance with her stand in Title Suit No. 54 of
1993. In the amendment application dated 22.09.2005 the plaintiff has taken a plea that this expression was wrongly typed in paragraph no. 9 of the
plaint. Be that as it may, on a plain reading of the plaint averments it is apparent that the proposed amendment in paragraph no. 9 to the extent that the
aforesaid 0.19 acres land is in use and occupation of the plaintiff is necessary. No doubt, the application for amendment was filed at a stage when the
plaintiff had examined seven of her witnesses, the amendment in paragraph no. 9, if not permitted, would bring contradiction in the plaint averments
and therefore, the trial Judge has failed to exercise a power vested in it when it has declined to permit amendment in paragraph no. 9 of the plaint.Â
Accordingly, amendment in paragraph no. 9 through amendment application dated 22.09.2005 is allowed. Â
The writ petition is partly allowed.Â