IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.305 of 2006 RAMAYAN SAH & ORS Versus BAJEE LAL SAH & ORS ----------- 9. 2.9.2009 Heard Mr. Shashi Shekhar Dwivedi, learned Senior counsel for the plaintiffs- petitioners and the counsel appearing for the opposite parties. This civil revision application is directed against the order dated 23.12.2005 in T.S.No. 158/2000 whereby and whereunder the prayer of the petitioners for amendment in the plaint was rejected by the court below on the ground that such amendment was not only belated but also was aimed at changing the very nature of the partition suit into a title suit. Mr. Dwivedi, learned Senior counsel appearing on behalf of the petitioners, would submit that the proposed amendments were formal in nature and was not in any way going to change the nature of the suit. He would submit that a mere change in the prayer for seeking declaration of title in the suit property by deleting the earlier prayer of partition was not capable of changing the nature of the suit and as such, 2 the whole approach of the court below of refusing amendment in the plaint was contrary to the sprit of Order 6 Rule 17 C.P.C. He would further contend that the delay in seeking amendment in the plaint cannot be a ground for its refusal, inasmuch as such amendment could be allowed by the trial court at any stage including even at the time of judgment. On the other hand, learned counsel for the defendants-opposite parties, has submitted that originally when the suit was filed in the year 2000 the same was out and out a partition suit as would be apparent not only from the reading of the entire plaint but also the relief sought by the plaintiffs-petitioners claiming 1/4th share in Schedule I and II of the properties and ½ share in Schedule III of the property. He had further submitted that the defendant- opposite parties were first called upon to adduce their evidence and only thereafter the plaintiffs-petitioners had completed their evidence and after both the sides had completed the evidence and the case was pending for argument, a wholly belated 3 prayer for amendment in the plaint was malafide and was made in order to wriggle out of a situation in which the plaintiffs had found their claim of partition to be wholly negated. He would also refer to the contents of the amendment petition itself to submit that not a word was said in the amendment petition filed by the plaintiffs- petitioner which was capable of explaining the necessity of such amendment after exercise of due diligence. In the opinion of this Court learned counsel for the opposite parties seems to be correct. First of all if the relief originally prayed by the petitioners in the original suit is compared with the proposed amendment in the relief, it would become clear that a partition suit was sought to be converted into a declaratory title suit as would be evidenced from the comparative reading of the original relief vis-à-vis the amended relief as prayed for by the plaintiffs-petitioners. In the original plaint the plaintiffs-petitioners after giving full details of the families of the two sides in 4 paragraphs no. 1 to 10 had also gone to explain the nucleus of the joint family in paragraph no.11 and in that context in paragraph no.14 of the plaint while Schedule I and II were said to be ancestral property, the property shown in Schedule III were shown to be land purchased by different co- parceners. The cause of action for filing such partition suit was also based on an order of the Joint Director of Consolidation wherein the property of Schedule I, II and III were recorded in the name of the defendants-opposite parties as against which when the writ application filed by the plaintiffs-petitioners was dismissed by this Court with an observation for moving the civil court, the plaintiffs- petitioners had in paragraph 18 of the plaint given the reasons for necessity for filing of the partition suit for getting their shares partitioned by the court. As a matter of fact the base for the partition suit and the share of the parties was also clearly defined in paragraph 19 of the plaint wherein the plaintiffs-petitioners had claimed 1/4th share in the ancestral 5 properties i.e. Schedule I and Schedule II properties and ½ of the share in the purchased property vide Schedule III to the plaint. It is thus clear from the reading of the plaint that the same was out and out a partition suit for the following prayer in paragraph no.21: “;g fd mijksDr] okrksa ij fcpkj dj oknhx.k ds i{k esa oaVokjkdk t;i= fn;k tk; oks oknhx.k dk fgLlk dafMdkA oks nks esa 1@4 oks dafMdk 3 esa 1@2 orukrh dfe”kuj iqjd djkdj n[ky dCtk fnyok fn;k tk;A” It has to be also noted that while Schedule I of the property was in respect of 5 bigha 18 katha and 19 dhur of agricultural land, Schedule II was in respect of 3 katha and 10 dhur of homestead land and Schedule III was in respect of 3 bigha 14 katha and 15 dhur of purchased land. The genealogy attached with the plaint for defining the share as claimed in the body of the plaint for partition of the aforementioned properties of Schedule I, II and III leaves nothing for speculation that the same was out and out a partition suit. As noted above, when the defendants- opposite parties had taken the plea of previous partition, they were asked to lead evidence first and they had adduced 6 their evidence in support of their plea and after their evidence was closed on 21st August, 2003 the plaintiffs- petitioners had also adduced their evidence which was closed on 9.2.2005. It is only after closing of the evidence of both the parties while the case was pending for arguments, since 9.2.2005 the plaintiffs- petitioners after a period of more than six months had come out with the amendment petition, the relevant portion whereof reads as follows: “vkosnu i= feu tkfuo oknhx.k vUnj vkns”k 6 fu;e 17 O;ogkj izfØ;k lafgrk fuEufyf[kr gS %& 1- ;g fd bl eksdnek esa fookn gklhy [kjhnxh lEifr ds fuLor gS oknh dk dFku gS fd tks Hkh lEifr [kjhn dh xbZ gS og bteky dh lEifr gS tcfd izfroknhx.k dk dFku gS fd tks Hkh gklhy [kjhnxh lEifr gS og mldh uhth lEifr gS blesa oknh x.k dks dksbZ gd ugha curk gSA 2- ;g fd mijksDr fcUnq ij nksuks i{kksa ds rjQ ls lk{; ,oa lcqr fn;k x;k gSA mijksDr ifjfLFkfr esa okni= dk la”kks/ku djuk t:jh gSA 3- ;g fd bl ejEefr ls upj vkWQ n dksLV oks dkSt vkWQ ,D”ku esa dksbZ ifjorZu ugha gksrk gSA vr% Jheku~ ls fuosnu gS fd okn i= dks fuEufyf[kr rjhds ls ejEefr dj fn;k tk; fd gdjlh oknhx.k dks gksosA rQlhy ejEefr uEcj &3 3- ;g fd nknjlh ds ikjk uEcj ,d dks dkV fn;k tk; rFkk mls txg ij fuEufyf[kr ikjk tksM fn;k tk; ^^ ;g fd mijksDr ckrksa ij fcpkj dj ;g fu.kZ; dj fn;ktk; fd dfMdk 3 dh lEifr esa vk/kk cknhx.k ,oa vk/kk izfroknh la[;k&1 rk 11 dk gS rFkk ;g Hkh fu.kZ; dj fn;ktk; fd pdcUnh funs”kd eqtQ~Qjiqj dk vkns”k vfyxy Hkkok;M dks fonkmV tqjhfMDlu gSA ejEefr uEcj &7& ;g fd okn ds ikjk uEcj 20 ds 5oh ykbu esa okLrs ds okn “kCn oaVokjk dkVdj mlds txg ij ?kks’k.kk ds** ¼fMdyjs”ku½ tksM fn;ktk;A ejEefr uEcj & ;g fd okn i= ds ikjk uEcj 18 ds nqljh ykbZu ls viuk ds okn “kCn fgLlk vyx dkV fn;ktk; oks mlds txg ij “kCn gfd;r fu.kZ;** tksM fn;ktk; rFkk blh ikjk ds 2 nqljh ykbu esa oks “kCn oknhx.k esa uzfroknhx.k ls oaVokjk dj ysus dh dbZ,dokj dgk ysfdu ;s yksx badkj dj x;s** dkV fn;k tk;A” 7 From a perusal of the aforementioned amendment petition, it would therefore be clear that the only reason for converting a partition suit into a declaratory title suit was the stand taken by the defendants-opposite parties that Schedule III land was purchased by them out of their own earnings. In this background this Court would find that neither the requirement of Order 6 Rule 17 C.P.C. as in force from 1.7.2005 was fulfilled nor there was any explanation as to why such a belated amendment petition was filed by the plaintiffs-petitioners. The plea that Schedule III property was purchased out of their own earnings and thus, incapable of being partitioned as prayed by the plaintiffs-petitioners was already known to them even at the time of framing of issues after perusal of the written statement of the defendants-opposite parties. The defendants-opposite parties in fact had given no surprise to them in course of evidence and at least that is not the case of the plaintiffs-petitioners. It thus becomes clear that such amendment in the 8 plaint was only to tide over the order of the Joint Director of Consolidation, Muzaffarpur by getting it declared as illegal, void and without jurisdiction. Such order in fact again was the basis and the cause of action for filing of the suit as is apparent from paragraph 15 of the plaint which reads as follows: “;g fd Qjhdsu ds bykds esa pdcUnh dh dk;Zokgh “kq: gq;h ftlesa izfroknh la[;k 1 rk 11 ds osbekuh ds pyrs dafMdk 3 dh lEifr dks viuk [kkl [kfjnxh tk;nkn oS;ku fd;k tks eqtQ~Qjiqj la;Dr funs”kd pdcUnh ds ;gk¡ fjfotu gsrq x;k la;qDr funs”kd us ljkljh rfjds ls osyk xkSj dkfey oknhx.k ds f[kykQ vkns”k ikfjr dj fn;k ftlds f[kykQ ekuuh; mPp U;k;ky; iVuk esa fjV nkf[ky gqvk ekuuh; mPp U;k;ky; us flfoy dksVZ ls fu.kZ; djkus gsrq vkns”k ikfjr dj fn;kA” Thus, when the suit itself was filed on account of the aforementioned order of the Joint Director, Consolidation and the observations of this Court in the writ petition filed by the plaintiffs- petitioners, there was no justification for filing such a belated amendment petition. It is in this backdrop that one has to also go in to the sprit of the amended provisions of Order 6 Rule 17 C.P.C. which on or after 1.7.2005 literally prohibits amendment in the plaint after commencement of the trial in the following words: 9 “Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controvery between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” As noted above, there is not a single word in the application for amendment which would show that the plaintiffs- petitioners in spite of due diligence could not have raised the matter relating to amendment prayed before commencement of the trial. Thus, this Court is satisfied that the amendment petition itself was also not in keeping with the mandate of amended provisions of Order 6 Rule 17 C.P.C. in force on the date of filing of the amendment petition. 10 This Court in fact finds sufficient force in the submission of the counsel for the defendants-opposite parties that such amendment was in fact a malafide attempt on the part of the plaintiffs-petitioners to take away admissions made in the plaint as with regard to Schedule III property and the attempt of the plaintiffs- petitioners was to avoid a judgment in the partition suit. Added to it the order of the Joint Director, Consolidation having been passed well before institution of the suit, a declaration in respect of same being void, inoperative and without jurisdiction could not have been sought by the plaintiffs-petitioners after expiry of more than five years, inasmuch as the period of limitation for assailing such order had already expired much before filing of the amendment petition. Added to all these when this Court would find that the suit was only pending for arguments, the attempt made by the plaintiffs-petitioners for amendment in the plaint was only aimed at delaying the disposal of the suit which has been partly achieved by them by keeping this civil 11 revision application pending before this Court for more than three years. That being so, this Court must hold that there is no jurisdictional error in the impugned order refusing amendment in the plaint and consequently this civil revision application being devoid of any merit is hereby dismissed with a direction to the court below to ensure that the suit is positively disposed of by delivery of judgment within a period of six months from the date of receipt/ production of a copy of this order. (Mihir Kumar Jha,J.) Surendra/