IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9036 of 2011 ====================================================== Raghuwansh Mani, S/o Late Binda Prasad, R/o Mohalla - Siwan Sonar Tola, P.O. – Siwan, P.S. - Siwan Town .... .... Defendant II Set / Petitioner Versus 1. Lakshman Prasad @ Lakshaman Narayan Prasad, S/o Late Badari Prasad, Resident of Village - Nayakila, Paragna Bara, P.S- Siwan Town, P.O- Siwan, District- Siwan 2. Sunil Kumar @ Lakshaman Narayan Prasad, S/o Late Badari Prasad, R/o Mohalla Nai Kila, P.O- Siwan, P.S- Siwan Town, District- Siwan …….. Plaintiff - Respondent 3. Mritunjay Kumar @ Bacha Babu, S/o Late Bhagawan Prasad, Resident of Village - Nayakila, Paragna Bara, P.S- Siwan Town, P.O- Siwan, District- Siwan 4. Ashok Prasad, S/o Late Bhagawan Prasad, Resident of Village - Nayakila, Paragna Bara, P.S- Siwan Town, P.O- Siwan, District- Siwan 5. Binod Prasad @ Shawamijee, S/o Late Bhagawan Prasad, Resident of Village - Nayakila, Paragna Bara, P.S- Siwan Town, P.O- Siwan, District- Siwan 6. Sanjay Kumar, S/o Late Bhagawan Prasad, Resident of Village - Nayakila, Paragna Bara, P.S- Siwan Town, P.O- Siwan, District- Siwan …… Defendants / Respondents II set 7. Smt.Gyarri Devi, W/o Kripa Nand Gupta, D/o Late Bhagawan Prasad, Resident of Village- Nayakila, Paragna Bara, P.S- Siwan Town, P.O- Siwan, District- Siwan 8. Smt. Sandhaya Devi, W/O Uday Kumar & D/o Late Bhagawan Prasad, Resident of Village- Nayakila, Paragna Bara, P.S- Siwan Town, P.O- Siwan, District- Siwan 9. Smt. Pushapa Devi, W/O Krishana Prasad & D/o Late Bhagawan Prasad, Resident of Village- Nayakila, Paragna Bara, P.S- Siwan Town, P.O- Siwan, District- Siwan 10. Mithilesh Kumar, W/o Late Bidushekhar Prasad, Resident of Village- Nayakila, Paragna Bara, P.S- Siwan Town, P.O- Siwan, District- Siwan 11. Nitin Verma, minor son of Late Bidhushekhar Prasad through mother Patna High Court CWJC No.9036 of 2011 (16) dt.21-12-2011 2 / 5 2 and natural gruardian OP no. 10, Resident of Village - Nayakila, Paragna Bara, P.S- Siwan Town, P.O- Siwan, District- Siwan 12. Verdan Verma, minor son of Late Bidhushekhar Prasad through mother and natural gruardian OP no. 10, Resident of Village - Nayakila, Paragna Bara, P.S- Siwan Town, P.O- Siwan, District- Siwan 13. Depali Kumari, minor daughter of Late Bidhushekhar Prasad through mother and natural gruardian OP no. 10, Resident of Village - Nayakila, Paragna Bara, P.S- Siwan Town, P.O- Siwan, District- Siwan 14. Sonali Kumari, Late Bidhushekhar Prasad Resident Of Village- Nayakila, Paragna Bara, P.S- Siwan Town, P.O- Siwan, District- Siwan ….. Defendants / Respondents 3rd set 15. Shanti Devi, W/o Late Bashudeo Prasad & D/o late Badari Prasad Resident of Nayakila, P.S- Siwan Town, Pargana Bara, P.O- Siwan, Disrict- Siwan 16. Chandrika Devi, W/o Jagdish Prasad & D/o late Badari Prasad Resident of Nayakila, P.S- Siwan Town, Pargana Bara, P.O- Siwan, Disrict-Siwan 17. Maya Devi, W/o Chandrika Prasad & D/o late Badari Prasad Resident of Nayakila, P.S- Siwan Town, Pargana Bara, P.O- Siwan, Disrict-Siwan 18. Dharmshila Devi, W/o Dharmedra & D/o late Badari Prasad Resident of Nayakila, P.S- Siwan Town, Pargana Bara, P.O- Siwan, Disrict-Siwan 19. Prakash Sony, S/o Late Kanti Devi, Resident of Mohalla- Sonar Toli, P.O- Siwan, P.S- Siwan Town, District- Siwan 20. Prabhat Sony, S/o Late Kanti Devi, Resident of Mohalla- Sonar Toli, P.O- Siwan, P.S- Siwan Town, District- Siwan 21. Smt.Usha Sony, W/o Subash Chandra Pd., D/o late Kanti Devi, Resident of Mohalla- Sonar Toli, P.O- Siwan, P.S- Siwan Town, District- Siwan 22. Smt. Sangita Devi, W/o Santosh Kumar, D/o late Kanti Devi, Resident of Mohalla- Sonar Toli, P.O- Siwan, P.S- Siwan Town, District- Siwan .... .... Defendants / Respondents IV set. ====================================================== Appearance : For the Petitioners : Mr. Chandra Kant, Advocate. For the Respondent no. 1 & 2: Ms. Mallika Mazumdar, Advocate. For the Respondent no. 3: Mr. Ramesh Kumar Verma, Advocate. Patna High Court CWJC No.9036 of 2011 (16) dt.21-12-2011 3 / 5 3 For the Respondent nos. 11 to 14: Mr. Nityanand Mishra, Advocate. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE ORAL ORDER 16 21-12-2011 This is a writ petition under Article 227 of the constitution converted from Civil Revision application no. 1764 of 2008 filed under Section 115 of the Code of Civil Procedure. The matter at dispute is the amendment made to the plaint in Partition Suit No. 288 of 1995 pending in the court of Sub Judge VII, Siwan. In the pending suit, on 23rd July 2007 the plaintiff filed application for amendment of the plaint. According to the plaintiff, there were certain typographical errors in the plaint which required correction. The challenge in the present writ petition is confined to the amendment sought to be made in paragraph 14 of the plaint. The litigation has a long chequered history. In paragraph 14 of the plaint, the plaintiff made a categorical statement that the consent decree passed in Partition Suit Nos. 36/63, 66/64 and 59/65 was never acted upon. Under the application for amendment, the petitioner has prayed that the said statement made in paragraph 14 be deleted. The application was contested by the writ petitioner – defendant no. 18. According to the defendant no. 18, if the said statement is allowed to be withdrawn, the defendant’s right to hold the property would be adversely affected. The learned Sub Judge, under his order dated 18th July 2008, observed that the proposed amendment did not change the tenor of the suit and that it was a formal amendment which was required to be allowed. The learned Sub Judge has accordingly allowed the amendment. Patna High Court CWJC No.9036 of 2011 (16) dt.21-12-2011 4 / 5 4 Feeling aggrieved, the defendant no. 18 preferred the above-referred Civil Revision application no. 1764 of 2008 which has since been converted into CWJC No. 9036 of 2011 under Article 227 of the Constitution. Learned Advocate Mr. Chandrakant has appeared for the petitioner. He has submitted that the petitioner claims right to property through his late wife. The late wife of the petitioner had been given a part of the suit property by her father as marriage gift. If the aforesaid statement were allowed to be withdrawn, the writ petitioner will be automatically non-suited. He has submitted that the admission once made cannot be permitted to be withdrawn. In support of his submission, Mr. Chandra Kant has relied upon the judgment of the Hon’ble Supreme Court in the matter of Heeralal Vs. Kalyan Mal & Ors. (AIR 1998 SC 618) and the judgment of this Court in the matter of Smt. Bimla Devi & Ors. Vs. Shiv Narain Singh @ Shiv Narain Pd. Singh & Ors. {1998 (3) PLJR 387}. The petition is contested by Ms. Mallika Majumdar. She has appeared for the plaintiff. She has vehemently argued that in the eviction suit filed by the plaintiff against the present petitioner, the plaintiff has succeeded. The right claimed by the present petitioner as a lawful owner of the part of the suit property has been rejected by this Court. The decision has been affirmed by the Hon’ble Supreme Court. Under the proposed amendment all that the plaintiff seeks is the deletion of certain statement which is factually incorrect and has been inadvertently inserted. Learned Advocate Mr. Ramesh Kumar Verma has appeared for the respondent no. 3 and learned Advocate Mr. Nityanand Mishra has appeared for the respondent nos. 11 to 14. Patna High Court CWJC No.9036 of 2011 (16) dt.21-12-2011 5 / 5 5 Respondent nos. 3 & 11 to 14 have contested the writ petition and have supported the amendment. As noted hereinabove, the litigation has a long chequered history. The parties have been litigating at least since 1956. There are suits for partition, title suits and suit for eviction. Some have been decided; some are still pending. The consent decree referred to in paragraph 14 of the plaint is admittedly in respect of the suit property. The plaintiff, in no uncertain terms, admitted that the consent decree was not acted upon. Whatever be the consequence, it is apparent now that the plaintiff has succeeded in the eviction suit, he wants to withdraw from the aforesaid statement to avail of the benefit of eviction decree. Admission once made cannot be permitted to be withdrawn. It is apparent that it is not a typographical error or an inadvertent mistake. The withdrawal of the said statement would certainly alter the tenor of the suit or at least the pleadings. Such an amendment could not have been permitted by the learned Sub Judge. For the aforesaid reason, this petition is allowed. The impugned order dated 18th July 2008 made on amendment application is partially set aside. The amendment sought in paragraph 14 of the plaint under proposed amendment paragraph (M+) is rejected. The parties will bear their own costs. Dilip. (R.M. Doshit, CJ)