IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. No.18607 of 2010 1. Md. Naimuddin S/O Late Gaffar Miya R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur 2. Md. Jalim Miya S/O Late Gaffar Miya R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur Versus 1. Mozibul Khan S/O Late Moiz Khan R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur 2. Nazhar Khan S/O Late Moiz Khan R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur 3. Imam Khan S/O Late Moiz Khan R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur 4. Jaitun Nisa Widow Of Late Suleman Miya R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur 5. Naim Miya S/O Late Suleman Miya R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur 6. Shamim Miya S/O Late Suleman Miya R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur 7. Sharif Miya S/O Late Suleman Miya R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur 8. Garib Miya S/O Late Suleman Miya R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur 9. Roshan Khatoon W/O Naieem Miya R/O Mohalla- Mahadeva Road, Ara, P.O.- Arrah, P.S.- Arrah Town, Distt.- Bhojpur 10. Ishara Khatoon W/O Mahfooz Miya R/O Mohalla- Sadar Bazar, Danapur, P.O.- Danapur, P.S.- Danapur, Distt.-Patna 11. Lakman Miya S/O Late Sattar Miya R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur 12. Usman Miya S/O Late Sattar Miya R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur 13. Salam Miya S/O Late Gaffur Miya R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur 14. Ibrahim Miya S/O Lte Gaffur Miya R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur 15. Zumadin Miya S/O Late Gaffur Miya R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur 16. Kalam Miya S/O Late Gaffur Miya R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur 17. Sidhnath Prasad S/O Late Chandrika Prasad R/O Vill.- Gundi, P.O.- Gundi, P.S.- Barahara, Distt.- Bhojpur, At Present Residing At Mohalla- Shivganj, Ara, P.O.- Ara, P.S.- Ara Town, Distt.- Bhojpur 18. The State Of Bihar 19. The Registrar, Civil Court, Bhojpur at Ara ------------------------ 03. 23.08.2011 Heard Mr. Anish Chandra Sinha, learned counsel 2 appearing on behalf of the petitioners. The writ petition has been filed challenging the order dated 2.1.2010 passed by the learned Fast Track Court Ist, Ara in Title Appeal No. 45 of 2004, whereby the learned Appellate court has been pleased to reject the amendment petition filed on behalf of the petitioner on 23.10.2009, seeking amendment of plaint of Title Suit No. 20 of 1991 and for amendment in the sale deed dated 14.7.1943 / 15.7.1943 by replacement of plot no. 1640 by plot no. 1647. It is the case of the petitioners that the plot in question was purchased through register sale deed dated 14.7.1943 / 15.7.1943 by the father of the petitioners from one Binda Prasad who in turn had purchased the said plot from one Gaffar Mian. It is contended that by mutual mistake the sale deed executed by the vendor Binda Prasad in favour of the father of the petitioners incorrectly mentioned the plot no. 1640 in place of plot no. 1647 although the boundaries given in the sale deed pertained to plot no. 1647 and not plot no. 1640. It so appears that in the revisional survey the name of the respondents was entered in the survey khatiyan. It is at this stage that the suit in question was filed by the petitioners giving rise to Title Suit No. 20 of 1991 seeking a declaration of title and possession over plot no. 6146 (new) of khata no. 1363 having an area of 2 decimal fully described in Schedule-A to the plaint and also for a declaration that the revisional entry of the defendant no. 2 in the survey khatiyan was wrong. The suit was contested by the defendant and was dismissed 3 by judgment and decree dated 20.11.2004. The petitioner being aggrieved by the dismissal of his suit preferred a Title Appeal giving rise to Title Appeal No. 45 of 2004. At this stage, the petitioner filed a petition under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’), seeking amendment in the details of the plot mentioned in the schedule and by seeking incorporation of the statement that a mutual mistake had occurred in the sale deed dated 14.7.1943 / 15.7.1943 by incorrectly mentioning the plot no. 1640 (old) in place of plot no. 1647, although the boundaries mentioned in the sale deed pertained to plot no. 1647. A further incorporation was sought that the plot no. 1640 as mentioned in the sale deed of which the new plot no. is 6150, having an area of one decimal only be replaced by plot no. 1647. The amendment so sought by the petitioner was dismissed by the learned appellate court vide order passed on 2.1.2010 and hence the present writ petition. Learned counsel for the petitioners relying upon the provisions of Order 6 Rule 17 of the Code read with Section 26 of the Specific Relief Act, submits that the petitioner was entitled to seek amendment at any stage of proceedings including at the stage of appeal, once a mistake has been found in the plaint and/or the sale deed on which the claim is based. Learned counsel relying upon a judgment of the Hon’ble Supreme Court reported in A.I.R. 2008 SC 1960, submits that in similar circumstances the Supreme Court taking into consideration the provisions of Section 26 of the Specific Relief Act has allowed amendment not only in the 4 agreement but also in the description of the suit property mentioned in the plaint. It is thus submitted that the plaintiff-petitioner was well within his right to seek amendment in the schedule of the plaint as well as in the sale deed which was the basis of the claim sought to be enforced through the suit in question. I have heard Mr. Anish Chandra Sinha, learned counsel for the petitioners and have also perused the materials on record. The sale deed which is the basis for enforcement of the right by the plaintiff-petitioner seeking declaration of title and possession is dated 14/15.3.1943. The suit was filed in the year 1991 seeking such declaration and was dismissed on 20.11.2004. In all the thirteen years while the suit was pending before the trial court no such application was filed by the petitioners. The appeal was filed in the year 2004 giving rise to Title Appeal No. 45 of 2004 and it is only after a lapse of almost five years of the pendency of the Title Appeal that the petitioner became aware of the mistake occurring in the sale deed and when he filed the petition for amendment in question on 23.10.2010. The proposed amendment was rejected by the court below, inter alia, on grounds that the mistake so sought to be corrected in absence of the relevant parties to the sale deed, in the suit proceedings could not be allowed. Neither the vendor nor his heirs are admittedly party to the suit proceedings and thus the contention of the petitioners of invocation of the principles of mutual mistake cannot be allowed in the present proceedings. Apart from the fact that the petition seeking amendment is grossly belated, even the vendor of the sale deed is not a party to the suit 5 proceedings and as such the mistake so sought to be rectified in the sale deed could not have been allowed in the suit proceeding. This Court is thus of the opinion that the application seeking amendment having been filed at such a stage is hopelessly belated. Besides in absence of relevant parties to the sale deed in the suit proceedings, the mutual mistake could not be rectified and was rightly rejected by the court below. The writ petition is dismissed. S.Sb/- (Jyoti Saran, J.)