‘MVVW ~x-mu ma mmwvwvv V wxvw Vm ’ THE HIeH COURT OF JUDICATURE AT BILASPUR V WRIT PETITIO&.&6>N 443w ' OF 2009 n, TP'ETITIONERS‘ ‘ : /1. Su’r‘endr‘a‘ Kumar‘ Jain, son of (Defendan‘rs >V Shr‘i SaTyanar'ayan Jain, aged o.1 to 4 & '7) r dbouf 4’0 yedr‘s,‘ OccupaTion} —‘ Business/“residenf’ of wB/“4', A‘nu‘pam Nagar‘fRa/i‘pur; /’2’.5.5K.: Jain & Sons (HUF), fhrough- ‘Karfa Surenid'ra Kumar r Joi-n,~ o‘ " of Shrl Lj‘Sa’r'y'onanayaw Jam \ aged 5 hi rr‘ gd ae e‘sdf f Am rien n-up‘a oar‘, Qaipu Ng r'. inance &~' ‘P‘r'oper‘ PVT. V hnough is 18min usu Jon, aged aouT‘ ears, wife of Shri‘Su‘rendxrj r" J egistere fice, ‘havi G pl ad, aushaia Comex, K.K. Ro ‘ iMdh Rai un. auapa r‘a, p - h’ ocief L‘IaTQ roug air ena ai S r‘a/ urEe‘n, abou f of- ' B/4, " Shnf . di ‘evélor’n'en' Dpf, ’r X‘r Km i b 37 y Ta , " ‘-Kuma ain, rdp _ , Diremr ‘o' ‘’r, a y “ L N 3 N } F w Ltd. A/13 of ,Mor/ , Edc‘in fobis ia '~ Sy, Thh iTs Chman, Surdr Jn; REsPONbENTs Pmmifi‘s) SatyanardyaR Jai‘n, ’aged’ about; 4O ’year‘s, residénflof. B/4, Anupam Nagaf, Raipur‘ /1. Kalirchamn Son-kdr‘; V30n Vof La’re Marhur‘am $5nkar‘, aged abduf 36 year‘s' Occupation.— VIAg’ricul’rurisT, ‘ /2.5m’r., Yqshodd Bai, (her moTher SmT.’ Durpa‘r ’Bai died about 1O year‘s'back) aged 23 ,yeqlr‘s’ _ Occupafion— ,A‘gkri'cu'ifkwrisft /3. SmVT; Sa’ra‘swd‘ri ‘ B,ai_ Sonkqr‘L daughter: bf Late Marhu‘r’am Sdnkurjaged abo‘Ln‘l 40‘year‘s‘ No.1 To‘ 3 are residen‘r of §umkund, Raipur, Tehsi! and 'Distriic‘t ‘R‘qipur (cg) , /'_'4;‘Lsgm4r; ’sar'oij Bai Sonkar,‘ L daugh+er of Lu‘re Durgachdr‘an Sonkar‘,‘ aged abouf 25 years, Oécupa‘rion- AgricuHuri‘s‘r, ‘présem‘ly ‘ V § ‘r‘esiding, aT' Disfric‘r Durg.‘ V ’ :1} /5. Sfate‘, of Chha’r’risgqrh, “rhrough fhe CoHecTor, Dis’rricf Raipur (C.G,) Gunderdehi, Defendan 6 . No. ( ames of fw‘ p-r’ries in array of‘ cause T'i‘rle‘fnamdy Smt Dhela Bai and Sm‘r. Budha Bai, Son‘kar‘ have no? been mem‘ioned since, They ‘alr‘eady‘ expired. ‘ LPETITION UNDER ARTIVCLE\72%/227 OF THE CONsTIT‘UTION OF INDIA DJn-r'rn. .. As- _ (N o a HIGH COURT OF CHHATTISGARH AT BILASPUR ’ Surendra Kumar Jain and others vers su nkar o Kalicharan So and thers Post for 18-3-01 0 2. Sd/— Prashant Kumar Mishr Judge %O/ Single Bench: Honble Shri JustiCe Prashant Kumar Mishra Writ Petition (227) No.4430 of 2009 ORDER & HIGH COURT OF CHHATTISGARH AT BILASPUR Sinqle Bench: Hon’ble‘Shri Justice Prashant Kumar MiShra Writ Petitior1_(227) No.4430 of 2009 Petitioners Surendra Kumar Jain and others versus Respondents - Kalicharan Sonkar and others , Present: Shri B.P.Sharma, counsel for the petitioners. Shri Rakesh Thakur, counsel for respondents No 1 to 4 Ms. Sangeeta Mishra, Panel Lawyer for the State/respondent No.5. Writ Petition under Articie 227 of the Censtitution of India i ORDER (Passed on W? March,- 201 0) x Chailenge in this'petition under Article 227 of the Constitution of India, filed by the defendants in the suit, is to the order passed by the trial Court on 27-7-2009 (Annexure P~1) thereby allowing the plai‘ntiffs’ application for amendment in the plaint. 7;1. 2. The plaintiffs preferred the suit (Annexure P-2) on or about 28-3- 2000 for a declaration that the sale-deed dated 12-10-1999 pertaining to the suit land be declared illegal and void and the same be canoelled. / lt was stated in the plaint that the property belonged to late Baldu, father of defendant No.5 Budhabai Sonkar. Plaintiff‘No.1 Kalicharan and one Durgacharan Sonkar (since deceased) are the son’s of Budhabai. Plaintiffs No.2 to 4, namely, Dhelabai, Yashodabai and Saraswatibai, respectively, are legal heirs of'defendantNo.5Budh’abai. P . laintiff No.5‘Sarojbai Sonkar is the daughter of DurgacharanSonkar Q? The plaintiffs effort to get mutated their na‘mes did not yield any result ' and on 12 10 1999 defendant No 5 Budhabal executed a sale deed of the subject land in favour of defendants No.1 t9 4 though she was not entitled to sell the'land as she Was not the sole owner Of the property. It was stated that the purchaser defendants took benefit of the old age and illiteracy of Budhabai and got executed the sale-deed without " payment of adequate consideration and that‘the plaintiffs are still in possession of the property along'with Budhabai. C3. Defendants No.1 to 4 tiled their‘written statement (Annexure P-3) on or about 5-9-2005 and are defending the suit. It is the case of the defendants that defendant No.5 Budhabai'was::th‘e exclusiye owner of the propeny and the plaintiffs have no right title or Interest In the suit , : property as it did not belong to their forefathers but Budhabai had - obtained the property from her father 4. From the impugned order it appears that the trial Court has framed Issues and the swt has been fixed for recording of eVIdence lt‘ ’ does not appear from the documents annexed With the writ petition or from the return as to whether affidayits undef‘Or'der 18‘Ru’le 4 of the, Code of Civil Procedure, 1908 have been exchanged or not. / 5. The plaintiffs, thereafter, submitted the present application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (Annexure P—5) to incorporate amendments in the plaint to plead that Budhabai was the head of the joint Hindu family and had thrown the suit property received from her father into the joint stock of the family and thus the swt land was the iomt family property of the plaintiffs and Budhabai and I . t no longer remained the excluswe property of Budhabai. The plaintif - i fs ‘ ‘ A3,. further wanted to insert that it\is for this rea'son that in the ceiling case underthe Urban Land (Ceiling and Regulation) Act, 1976 an order was passed by the competent authority on 21-3—1991 aiiotting shares to piaintiff No.1 Kaiicharan, plaintiff.No.2 Dhelabai, Drupadbai (mother of piaintiff No.3 Yashodabai), plaintiff No.4 Saraswatibai and piaintiff,No.5 Sarojbai apart from allotting one share to defendant No.5 Budhabai. Other averments reiating to the plea of fraud, misrepresentation and non-payment of adequate consideration were also elaborated in the proposed amendment. 6. The present petitioners med their reply (Annexure P-6) to the amendment application and stated that by virtue‘of the proviso to Rule 17 of 'Order'6 of the Code of Civil ProcedUre, 1908 the amendment :application after framing of issues and fixing of the case for evidence is not maintainabler 7t Learned counsel for the petitioners has mainly argued that after ‘ insertion of the proviso to Rule 17 of Order 6 of the Code of Civil Procedure, 1908 the subject amendment could not have been allowed after framing of issues'and fixing of the case for evidence. It is also stated that an altogether new plea is sought to be raised and that the / amendment is not necessary for-adjudication of the subject matter of the suit. 8. Learned counsel for respondents No.1 to"4 has supported the impugned order by submitting that proviso to Rule 17 of Order 6 of the V Code of Civil Procedure, 1908 is not applicabie, the subject amendment is necessary for complete and effective adjudication of the ‘ : ’ git, the subject amendment is only elaboration of the pleadings ' / (Q? \—l(.. aready made in the plaint tha't the' propérty jointly‘ belongs to the plaintiffs and Budhab‘ai and that no prejudice will be caused to the opposite party, if the suit proceeds along with the amended pleadings. 9. The Insertion of provuso to Rule 17 of Order 6 of the Code of CIVII Procedure 1908 has been made by the Code of CIVil Procedure (Amendment) Act 2002 with effect from 1-7-2002 The Hon’ble ‘ Supreme Court in State Bank of Hyderabad vs Town Municipal CounCII (2007) 1 SCC 765 and Sumesh Smgh vs Phoolan Dev: I and others, (2009) 12 SCC 689 has held that by reason of Section' , (16(2)(b) of the Code of Civil Procedure (Amendment) Act 2002 the amendments carried out therein shall only apply to in respect of the 'swts which were filed thereafter and that in the suit filed before 1 7- :2002 ie the date when the amended Act came into operation the proVIso to Rule 17 of Order 6 of the Code of CiVil Procedure 1908 Will not apply. In the present case, the suit has been filed on or about 28- 3-2000 (as mentioned inthe plaint, Annexure P~2)‘. Thus, the proviso to Rule .17 of Order 6 of the Code of Civil Procedure, 1908 will have no application in the present case. 10. This Court shall now consider the argumentof learned connsel / for the petitioners that'a new plea is being raised and that the amendment is not necessary for adjudication of the suit. O‘n a‘reading of the plaint (Annexure P~2),~it~would be seen that pleas regardingthe property being jointly OWned bythe‘plaintiffs “and defendant No.5 Budhabai and that they'belong to joint Hindu family have been made in paragraphs 4 and 5 of the plaint. Similarly, plea regarding order a r passed by the competent authority under the Urban Land (Ceiling and “U“ .4», , . g3. l v Regulation) Act, 1976 on 21-3-1991 has b‘een made in paragraph6 of ' the plaint and it has further been stated that as per the said order the ' revenue authorities ought to have mutated plaintiffs' name on the suit property and that by not’ doing so the revenue authorities have negiected in performance. of their duties. Again in paragraph 7 of the ‘ piaint, it was pleaded that after death of Baidu; the plaintiffs have succeeded to the property and are joint owners and in possession of the suit property. If the pleadings now sought to be'raised by the said amendment are seen, it would appear that they are mere elaboration of the pieadings already available in the original plaint. Since the ‘ defendants have comeup with a plea in their written statement that t Budhabai, having receivedthe property from her fathe’r,, the suit land w cannot bethe ancestral property, the plaintiffs are now elaborating their earlier plea of joint ownership and that it is not a case where anew . case is being set up by the plaintiffs. About the necessity of the amended pleadingsfor deciding the suit, suffice it would be to say that if the proposed amendment is not barred under the law of limitation, theparties should beallowed toplead their respective cases. From the pleadings made, by'the parties! it appears that the fact regarding ‘ ’ the jointness of the property _ /, isthe core issue, therefore, it cannot be said that the said amendmentis not necessary for deciding the controversy between the parties and for complete and effective adjudication of the suit. This Court, thus, finds that the proposed. amendments are necessary to enable the plaintiffs to prove their case in the trial Court. er r I. / ‘11. In Chander Kanta Bansal vs. Rajinder Singh Ana'nd, 2008 { :q ,:1.._"" 7'- ’ AIR SCW 3225, it has been held by the Hon’ble Supreme Gourt that it' l _ -é— is the primal duty of the Court to decid'e as to whether such an ‘ amendment is necessary to decide the real dispute between the parties. 12. The Hon’bie Supreme Court referring to the decisions in Charan Das vs. Amir Khan, AIR 1921 PC 50, L.J.Leach & Co. Ltd. vs. Jardine Skinner & Co., AIR 1957 SC 357, Ganga Bai vs. Vijay Kumar, (1974) 2 SCC 393 and Ganesh Trading Co. vs. Moji Ram, (1978) 2 SCC 91, held in B.K. Narayana Pillai vs. Parameswaran ‘Pillai, (2000) 1 SCC 712, that the purpose and object of Order,6 Rule 17 of the Code of Civil Procedure, 1908 is to allow either‘party to alter v or amend his pleadings in such manner'and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests ofjustice on the basis of guidelines Iaid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalitiesof law should not be permitted'to hamper the Courts in the administration of, justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation. "in; 13. ln Sumesh Singh vs. Phoolan Devi and others (supra), the Hon’ble Supreme Court, while‘ referring to its earlier decision in Gautam Sarup vs. Leela Jetly and’others,r(2008) 7 SCC 85 has held that in a given case the statement earlier made in the pleadings can be . explained or clarified and further that a defendant is entitled to take an alternative plea. 1'4. When the law laid down by the HOn’ble Supreme Court in the above referred decusuons are applied to the facts of the present case this Court comes to the concluswn that by allowmg the amendment application moved by the plaintiffs to amend the pleadings in the plaint, the learned trial Court has not committed any error of law or r Jurisdiction As already found the amendments are mere elaboration ‘of earlier statements made in the plaint and that the plaintiffs are not raismg a new plea nor they are resmng from any earlier statement. The amendment-is, necessary for proper; and effective adjudication of ' the/is involved in the suit. ‘ 15. ln Celina Coelh‘o' Per'eira‘ ‘(Ms)‘ ' and others Vs...7Ulhas ‘ ~Mahabaleshwar Kholkar and others, (2010) 1 SCC 217, the Hon'ble Supreme Couit has laid down the principles as'to when the High Court can interfere with the impugned orders passed by the subordinate ' Courts'and tribunals in exercise of powers under Article 227 of the ( ' Constitution of india. On the basis ofthe principles laid down therein, (is ' ' this Court is of the opinion that the present is not a m case fOr H / interference with the impugned order passed by the learned trial Court ' allowing the plaintiffs’ application under Order 6 Rule 17 of the Code of . Civil Procedure, .1908. The instant writ'petition, thus, fails and is hereby dismissed. There shall be no order as to costs. Sd/— Prashant Kumar Mlshra l _ Judge Gopal