IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1935 of 2007 RAJ KUMAR CHOUBEY & ANR Versus DULHIN JANKI DEVI & ORS ----------- 2. 8.12.2008 Heard Mr. Kamal Nayan Choubey, learned Senior counsel for the petitioners and Mr. V.Nath, learned counsel for the opposite parties. By the impugned order the court below has allowed amendment in the plaint basically incorporating one more relief beyond what was originally prayed for. Such relief as sought to be incorporated in the plaint by way of amendment was to the effect as to whether the plaintiffs Janki Devi and Manki Devi are the daughters of Khedaru Choubey and Phoolkuery. Mr. Choubey while assailing such amendment has made three submissions. He first submits that such amendment was superfluous because it is a suit for partition and Genealogical table or relationship being integral part any specific amendment to this effect was not required. He would further submit that the whole purpose of seeking such amendment was malafide, inasmuch as when the petitioner 2 had filed an application on 5.4.2007 seeking abatement of the suit on the ground of its being barred under section 4(C) of the Bihar Consolidation and Prevention of Fragmentation Act (hereinafter referred to as the „Act‟), the plaintiff had filed an application for amendment in the plaint. It was further explained that such application was filed on 20.6.2007 and the court below in stead of first deciding the earlier application filed by the defendant petitioner with regard to abatement had proceeded to first decide the amendment application by the impugned order on 23.7.2007 and thereafter had gone to decide the application seeking amendment by another order dated 14.8.2007 holding that the suit had not abated. Mr. V.Nath, on the other hand, contends that such amendment whether be labeled as explanatory and/or clarificatory infact was absolutely necessary in view of the stand taken by the defendant petitioner in the written statement, inasmuch as where in paragraph 1 of the plaint the specific assertion of the plaintiff-opposite party 3 was made that the plaintiffs are the daughter of Khedaru Choubey, but the same was sought to be vehemently denied in the written statement by the defendant- petitioner suggesting that the two plaintiffs were imposter, outsiders and strangers and had not concern with the suit property, conferring them no right to seek partition of the suit land. Learned Counsel for plaintiff- opposite party has further produced before this Court the issues framed on the basis of such pleadings on 15.9.2004 wherein issue no. V and VI framed by the court below reads as follows :- “V. Is the genealogical table given by the plaintiff correct and are the plaintiffs daughters of Late Khedaru Choubey ? VI. Whether Khedaru Choubey died prior to 1937 as alleged by the defendant or died in the year 1950 as alleged by the plaintiffs?” Mr. Nath would, therefore, submit that in a suit for partition such an amendment in the pleadings and the relief 4 portion was required for the determination of the status of the plaintiffs, inasmuch as the defendant petitioners had themselves come out with a specific case and therefore, denying the rights of succession and inheritance of the plaintiffs in order to avoid any sort of embarrassment and/or confusion in future the plaintiffs had sought a specific relief by way of declaration that the plaintiffs are the daughters of late Khedaru Choubey and had inherited his property as a Class-I heir, upon his death in 1950. This Court after considering the aforementioned submissions is of the view that there is no merit in the case of the petitioner. Infact there was no question of those reliefs seeking declaration by plaintiffs to be daughters of Khedaru Choubey to be superfluous in any manner. The status or stand of the plaintiffs is dependent on their rights in the family properties, being the daughters of Khedaru Choubey as was averred in the plaint. The moment that was contradicted in the written statement by taking a plea that the 5 plaintiffs are the strangers and they have nothing to do with the suit property and they were never the daughters of late Khedaru Choubey, it was absolutely necessary for them to have this issue adjudicated by also seeking a relief to that extent. This Court would also find that when an issue of the present nature had already been framed, there was no question of any prejudice to the petitioners. The second aspect that amendment in the plaint was malafide, can again be gone into in the backdrop of the aforementioned facts. Had the plaintiffs never been required to prove this aspect on account of no contest offered by the defendant petitioner as with regard to genealogy and relationship of the plaintiff and late Khedaru Choubey, probably Mr. Choubey learned counsel could have been correct in submitting that this was a malafide amendment. However in view of the fact that it was the defendant petitioner who has challenged the status of the plaintiff and thereafter the issues were also framed on this score and thus if on the basis of those 6 issues a relief was sought to be added, which may be called to be either explanatory and clarificatory in nature that by itself would not establish the plea of malafide as stressed by the counsel for petitioner. Moreover the issues having been framed way back on 15.9.2004, as quoted above, and the evidence being yet to be adduced, the filing of the amendment petition by plaintiff- opposite party on 20.6.2007 cannot be dubbed as malafide, merely because the defendants petitioner had themselves a belated application for abatement of suit on 5.4.2007 without raising such plea specifically in their written statement and that too after proposing the issues and getting them framed on 15.9.2004. A civil litigation can not be contested like a game of chess and amendment in the plaint cannot be refused only because it will compel the defendants to contest the suit on all the issues for a final adjudication on all the aspects involved therein. The last submission that such relief was infact integral part of a partition suit and thus was not required to 7 be incorporated by amending the plaint is to be noted for its being rejected. Normally in a partition suit if relationship or very right of partition is being questioned, there should be, in the opinion of this Court, a clear issue and a clear prayer for giving finding on this score. Infact in the absence of such an issue and prayer in the plaint the suit, to be decided as a plain and simple partition suit, would be extending to even those areas covering also the field of entitlement or eligibility of the plaintiff. In that view of the matter, this Court would not find that the amendment so sought were either malafide or superfluous or wholly uncalled for. That being so, this application is wholly misconceived and is hereby dismissed. (Mihir Kumar Jha,J.) Surendra/