^ IN THE HON'BLE HIGH CQURT OF JUDICATURE AT BILASPUR (C.G.) WRITPETCTEON Artide 227 N0. \^^> OF 2010 PETITCONERS Plaintiffs ^-^w w ...v'y^' ^r^* ' / ^'w / 1. Chandrabhan Singh Thakur S/o.Late Shri Bhagwan Singh Thakur, aged about 47 Years. 2. ^ Khom Singh Thakur S/o. Shri Bhagwan Singh Thakur. aged about 37 Years. Both are residence of village - bhusera, Revenue Circle Abhanpur, Distt.- Raipur ( C.&.) VERSUS ^: ^' /' '^/ RESPONDENTS :1. Shivkumar Bais S/o. Shri Kejau Bais Deffendents aged about 63 years. By Caste - Kurmi residence of viJJagc - Dhusera, Post- Seoni, Tahsil- Abhanpur, Distt-Raipur (C.6.) 2. Ramkrishna Singh S/o. Late Shri Kabnhaiya Singh Thakur, aged about 54 years. residence of villa9e - Dhusera, Post- Seoni, Tahsil- Abhanpur, Distt.- Raipur ( C.G.) 3. State of Chhattisgarh , Through Cotlector, Raipur, Distt.- Raipur (C.^.) WRIT PETITION UNDER ARTICLES 227 OF THE_CONSTITUTION OF INDIA FOR ISSUEANCE OF APPROPRIATE WRIT .^ ^T HiGH COURT GF CHHATTiSGARH : BiLASPUR SiMQLE BEMCH : HGN'BLE BHRi MANiNDRA ^GHAhi SRRIVASTAVAJ. WRiT ^ETiTION (227.) N0.1893/201 0 PETiTIONERS: Chandrabhan Singh Thakur and another RESPONDENTS: Versus Shivkumar Bais and 2 others FQRPRONOUNCMENIOFOi^ER Sd/- Manindra Mohan Shrivastava Judge ^^.. 1 "'t i !^ ^ ^ '^ 'y^' .^' HiQH COURT OF CHHATTISGARh': BILASPUR SSnale Beneh: Hon'bie Shri iVSanjndra Mohan Shrivastava. J, WRiT PETSTiON (227) N0.1883/'2Q1G PETiTJONERS Chandrabhan Singh Thakur and another Versus RESPONDENTS Shivkumar Bais and 2 others WRiT PETSTiON UNDER ARTSCLE 227 OF THE CONSTITUTiON OF iNDJA Present: - Shri Suni! Sahu, counsei for the petitioners. Shri Sanjeev Agrawal, Panei Lawyer for the State/respondents. GRDER (Passed on ..1&Q12Q^Q) This petitjon under Articie 227 ofthe constitution of India has been fiied by the petitioner. aggrieved by order dated 8/03/2001 passed by 2 Civil Judge, Ciass ii, Raipur. in Civii Suit No.18-A/2009 bywhich petitioner'ts appiication under Order S Ruie 17 ofCivii Procedure Code for amendrnent has been rejected. 2. Shri Bhagwan Singh Thak-ur, father of the petitioners fiied a suit for grant of permanent injunction against respondents/defendants, on the pieadings that he and his brother Ramknshna SSngh/respondent-defendant No.2 owned ancestra! land in viiiage Dhusera, Patwari Haika No.136, Tahsii - Abhanpur, District-Raipur admeasuring 2.748 hectare under khasra Nos.95/1, 251 and 347. it was pieaded that the originai pSaintifr Bhagw'an Singh Thakur is in possession of iand comprised under khasra No.95/1 adrneasuring 0.635 hectare and cuitivating the same. It was averred that the respondent/defendant No.2 was interfering with his possession and attempting to dispossess -which gave rise to cause of action to fiie a suit and caiiing a decree of permanent injunction. During the pendency of the suit Bhagwan Singh died and the petitioners were ailowed to be substituted as iegai representatives being his sons. An amendrnent was aiso made introducing para 7-A in the pieadings to the effect that during the pendency of the suit, petitioner/ sons are in possession of the iand in dispute and defendant be restncted from interfering with their possession. 3. On 12/08/09, petitioners prayed for an amendrnent vide their appiication (Annexure P-6). This appiication however was rejected by ieamed Tria! Court by impugned order against which instant petstion has been fiSed. Submission of iearned counsei for the petitioner is that as the suit vvas in the preiiminary stage and frxed for evidence of piaintiffs wjtness and the proposed arnendment wiii not change the nature of the suit, iearned Court beiovv ought not to have rejected ttiie appiication and the petitioner's appiication for amendment desei-ved to be ailowed. in the submission of iearned counsei for the petitioner, the amendment proposed is necessaiy to decide the actuai controversy between the parties. The amendrnent a'oes not change the nature of the suit and by way of aniendment the pieadSngs regarding family partition were sought to be piaced on record. 4. The suit as it was originaiiy tlied by Bhagwan Singh Thakur, it was not a case of the piaintiff that the originai plaintiff Bhagwan Singh Thakur received iand in dispute under any partition. infact, there are no pieadings of partition but on the contrary, it has been pieaded that Bhagwan Singh Thakur and defendant No.2-Ramkrishna Singh are joint ovvner of the iand in dispute and the iand described in para 2 of the piaint and Bhagwan Singh is in possession of the iand in dispute i.e. iand admeasuring 0.635 hectares comprjsing kliasra No.95/1. During his iifetirne, Bhagwan Singh Thakur never came out with any such .-c-y^ 1 ^^ii^ j 't i ^ ^.^'y .•/ "K ^"""/"" :^ pieading of partition or other matters as now sought to be added by vvay of amendrnent. For the first time, the petitioner/sons of deceased Bhagwan Singh Thakur have corne out with a new pieading with entireiy new case that their father received the iand in djspute under an orai partition in order to cuitivate the iand. Their father had obtained ioan of Rs.600/- from the Cooperative Bank that the entire amount of ioan was repaid by the father of the petjtioners. As iong as Bhagwan Singh Thakur was prosecuting the suit as piaintiff, he never carne out with any such case that there was any partition or that he had obtained ioan for purchase of manure for cuitivating the iand in dispute and he repaid the entire arnount of ioan to the Cooperative Bank. Ev'en after hls death when arnendment was made in the piaint by adding a new para 7-A, this pieading was not raised. Frorn the order impugned, it is discerned that triai has commenced as the case has reached the stage of recording evidence. it is not the case of the petitjoner that triai did not commence. The finding of the learned Triai Court that the pieadings sought to be added by way of amendment reSate to the period during which the father ofthe piaintiff was aiive and the petitioners have not stated as to why the same was not pleaded eariier it does not suffer from any perversity. The Triai Court whiie rejecting appiication, taking intp consideration that the triai has commenced and the amendments have been fiied after great deSay and aiso having the effect ofchanging the nature ofthe suit has rejected the appSication. 5. Reievant provisjons under Order 8 Ruie 17 CPC cieariy provides that no appiication for amendment shaii be aiiowed after the triai has commenced uniess the Court comes to the conciusion trhat inspite of due diiigence, the party couid not have raised the matter before commencement of the trial. The findings recorded by the iearned Triai Court in rejecting the appiicatjon as discussed above cannot be said to be perverse or suffering from any error of jurisciiction so ^s' as to warrant interference by this Court under Articie 227 of the constitution of india. in the resuit, the petition is dismissed without notice to the other partles. Sd/- Manindra Mohan Shrivastava Judge