IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL REVISION No.1220 OF 2006 ISHWAR DAYAL SINGH ------Petitioner/Petitioner -:Versus:- SMT.MAYA DEVI & ANR. -------Opposite Parties/ Opposite Parties P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA *** Mihir Kumar Jha, J. Heard counsel for the petitioner and counsel for the opposite parties. In the opinion of this Court, the impugned order rejecting the prayer for amendment in the application under the Hindu Succession Act at the instance of the applicant/petitioner has been rightly rejected. The court below has noted that such an application was not only filed at the stage when the case was fixed for delivery of judgment but even otherwise was sought to be filed only in order to take away the admissions already made in the pleadings and the evidence by the applicant/petitioner. Mr. Shashi Shekhar Duvedi, learned senior counsel appearing on behalf of the applicant/petitioner invoking the principles of Order VI Rule 17 of the Code of Civil Procedure, 2 would contend that neither the delay nor admission would have weighed in taking away the right of the plaintiff to make an amendment which could be allowed at any stage. In this context, he has placed reliance on the judgment of the Apex Court in the case of Ragu Thilak D. John Vs. S. Rayappan & Ors. reported in 2001 (2) SCC 472 to contend that allowing an amendment is a matter of rule and refusal of such amendment is only by way of an exception. Counsel for the opposite parties, however has submitted that once the applicant/petitioner had admitted in the plaint that Ramdheyan Singh had died in the state of jointness leaving behind his three sons who came into joint possession of the property, he cannot be allowed to withdraw his own admission by taking a plea that Ramdheyan Singh had not only three sons but also two daughters. Counsel would further submit that addition of name of Lalan Singh and two daughters in fact, would have allowed to re- hearing of the succession case from the initial stage and could have also led to complete change in the nature of the case. It has also been submitted that if the applicant/petitioner 3 knowingly and purposely had not impleaded Lalan Singh and two daughters as a party to the aforementioned succession case, he could not have been allowed to do so after conclusion of not only the evidence but also argument by both the sides. In this context, reliance has been placed by him on the judgment of this Court in the case of Smt. Lipika Gupta Vs. Mr. Partho Gupta reported in 2005 (2) PLJR 644. First of all, this Court has to take into consideration that when the applicant/ petitioner on 2.9.2002 i.e. after the amendment in the Code of Civil Procedure in Order VI Rule 17 with effect from 1.7.2002 had filed the case for claiming a right of preemption and re-purchase only against the opposite parties, the heirs and legal representatives of one of the three sons of late Ramdheyan Singh namely Shiv Kumar Singh, what purpose could have been served by seeking amendment in the application for introducing the name of the remaining son, Lalan Singh as an opposite party or the alleged two daughters of late Ramdheyan Singh. It is in this context one has to take into consideration the averments made in the original application in paragraph no.1 4 stating therein that Ramdheyan Singh had three sons, namely, Lalan Singh, Shiv Kumar Singh and Ishwar Dayal Singh (applicant/petitioner). In paragraph no.3 of the application, it was again stated that Ramdheyan Singh had died in the state of jointness and after his death, the property had devolved upon all the three sons who are covered by Mitakshra Law and no partition amongst them had taken place in the life time of Ramdheyan Singh. It is with these pleadings that when not only an objection with regard to non-joinder of party was raised in the written statement but was also pressed with regard to the applicant being inherently defective on account of absence of Lalan Singh, an application came to be filed after it was reserved for judgment. It is, thus not difficulty to understand that the amendment petition was filed only to fill up the fatal gaps, inasmuch as, the right of preemption was not available where the property devolves by survivorship on all the heirs. The induction of the name of Lalan Singh and two daughters was, therefore, only a mode to reopen the entire hearing of the case which is simply not permissible in view of the existing provisions 5 under Order VI Rule 17 of the Code of Civil Procedure (after the amendment with effect from 1.7.2002) which reads as follows:- “17. 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 controversy 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.” (underlining for emphasis) The aforesaid proviso brought by an amendment clearly bars for allowing an amendment after the trial has commenced. The only exception therein is that if a party can satisfy the court that inspite of due diligence, it could not have raised the matter pertaining to the amendment sought before the commencement of the trial, they could allow such amendment notwithstanding commencement of such trial. There is no doubt that the trial in the present case had already commenced and in fact when the evidence had already been led by both the parties and the 6 argument both oral and written were also completed and the court below had reserved the case for judgment, the petitioner cannot be heard to say that the trial had not commenced. In the application seeking amendment in the application, not a word has been mentioned which can inspire confidence with regard to the exercise of due diligence in respect of not knowing the name of his own brother Lalan Singh or the two sisters. Thus, the requirement of the proviso to Order VI Rule 17 also was not fulfilled by the applicant/petitioner in course of making a prayer for amendment. This aspect of the matter in fact that such a belated amendment after 1.7.2002 in view of the amendment made under Order VI Rule 17 is not permissible, has been considered in the case of Smt. Lipika Gupta (supra). The relevant portion thereof reads as follows:- “5. It is an admitted fact that evidence of both the parties have been closed and the matrimonial cases are fixed for argument. By the proposed amendment the wife (petitioner) wants to bring on record a claim that the husband had already married another lady much earlier and from her he had two children, but in her amendment petitions the petitioner had no where stated any 7 reason for her filing the amendment petitions so belatedly. The proviso to Order VI Rule 17 of the Code of Civil Procedure as amended, clearly provides that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. Here the trial has commenced much earlier and the evidence has already been closed and there is nothing on record to show that inspite of due diligence the petitioner could not file amendment petitions earlier. 6. In the aforesaid circumstances, I am not inclined to interfere with the impugned order, specially when the same is a well considered order committing no illegality or jurisdictional error and accordingly both the civil revisions are dismissed.” Apart from the fact that such an amendment was wholly belated and in fact impermissible in view of the amended provisions under Order VI Rule 17, this Court would have an additional reason to uphold the correctness of the impugned order in view of the fact that such an amendment sought by the applicant/petitioner was in fact malafide. Earlier, the case of the applicant/petitioner in his original application 8 filed under Section 22 of the Hindu Succession Act was that his father while leaving behind three sons including himself (petitioner) had died in the state of jointness which automatically took away his alleged claim of right of preemption as it was not available in view of the fact that the suit properly had already devolved by survivorship. Subsequently, by bringing the two daughters on scene, the petitioner had sought to take away the theory of devolution by survivorship beyond the ambit of Section 6 of the Hindu Succession Act and wanted to give a complete new colour left which was rightly considered and rejected by the court below in the impugned order. This Court would find that the judgment of the Apex Court in the case of Ragu Thilak D. John (supra) would not be applicable for more than one reason. Firstly, in the case decided by the Apex Court, the amendment was definitely sought prior to the amendment in the Code of Civil Procedure, inasmuch as, such amendment in the Order VI Rule 17 of the Code of Civil Procedure came into force with effect from 1.7.2002 whereas the case in hand of the Apex Court was decided on 23rd January, 2001. Secondly, from the said 9 judgment of the Apex Court, it would be clear that it was not a case where the parties had already adduced their evidence and the arguments also were completed by both of them and the case was reserved for delivery of judgment. Moreover, there the amendment refused by the trial court and affirmed by the High Court related to an issue of relief which was claimed to be barred by limitation and the Apex Court in that context had held that the plea of limitation could be made subject matter of the issue after allowing the amendment prayed for. This Court, therefore would find no applicability to the ratio of the judgment of the Apex Court in the case of Ragu Thilak D. John (supra) specially when in paragraph no.6, the Apex Court had also confined the decision in the facts and circumstances of the case which would take away its precedential value and leave it to be one under Article 142 of the Constitution of India. For the sake of clarity, paragraph no.6 of the judgment of the Apex Court in the case of Ragu Thilak D. John (supra) is quoted hereinbelow:- “6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimize 10 the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for.” (underlining for emphasis) That being so, this Court, for the reasons indicated above, would find no merit in this application and would accordingly dismiss the same with a cost of Rs. 1,000/- to be paid by the petitioner to the contesting opposite parties. PATNA HIGH COURT DATED THE 21st July, 2008 Rsh (Mihir Kumar Jha, J.)