IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1312 of 2006 ADHIKARIYA DEVI Versus KUNTI DEVI & ORS ----------- 3. 7.11.2008 Heard counsel for the plaintiff- petitioner. In the opinion of this Court, the impugned order refusing amendment in the plaint does not suffer from any jurisdictional error so as to warrant interference of this Court under Section 115 of the Code of Civil Procedure. This Court would also approve the reasonings given in the impugned order and in fact it would only record that the amendment sought to be made by the petitioner in the plaint was not only belated but also wholly malafide. The plaintiff-petitioner had filed the suit in question in the year, 2000 claiming partition in the suit property as also for declaration that the deed of gift executed in her favour dated 18.6.1982 was a forged and fabricated document about which she had acquired knowledge on 5.9.2000. From perusal of the plaint, it would appear that the deed of gift was sought to be assailed on any and every possible ground but the 2 plaintiff-petitioner did not take a plea that such a deed of gift dated 18.6.1982 was brought into existence after the death of her father. Paragraph nos.10, 11 & 12 of the plaint would only go to show that the validity of the deed of gift was assailed on the ground that no permission was obtained from the Consolidation Officer before execution of such deed of gift or by making an incorrect statement in the deed of gift that her father had no issue. Thus, the plaintiff-petitioner had originally claimed the deed of gift to be a voidable document but when the defendant no.1 in whose favour the deed of gift is said to have been executed by the father of the petitioner came out with a specific case supporting the validity of the deed of gift to have been originally executed by the father of the plaintiff, a clever attempt was made by the plaintiff-petitioner only after five years of filing of the suit by introducing an amendment which was capable of in fact changing the very nature of the suit. It has to be noted that even when the suit was filed some time in the month of September, 2000 by the petitioner describing 3 herself to be the daughter of late Ram Naveen Tiwary, neither the date of death nor the story of the deed of gift dated 18.6.1982 to have been executed by a dead person i.e. her father had been set out and after five years, in the amendment petition filed on 26.9.2005, a plea was taken that a death certificate dated 27.3.2001 went to show that the date of death of her father late Ram Naveen Tiwary was 10.6.1982. Thus, a very innocent amendment of introducing only the date of death of her father was pressed by her in the amendment application which as noticed above was rightly intercepted by the court below. A question would arise as to why the plaintiff-petitioner had not raised the most important issue in the plaint itself which could have invalidated the deed of gift on the basis of date of death of her father being 10.6.1982 and the deed of gift being in the date of 18.6.1982. Its answer however would lie in the date of issuance of such death certificate, which is dated 27.3.2001, whereas the suit was filed in the month of September, 2000. The said death certificate is Annexure-1 to the civil revision application and would itself go to 4 show that the Panchayat Sevak had issued such certificate by recording the date of death of the father of the petitioner to be 10.6.1982 on the basis of a registration made only on 27.3.2001. Obviously, the said death certificate created/procured by the petitioner after filing of the suit was not only a highly doubtful document recording the event of death of her father after nine years in the official records but also giving a complete volte face to the earlier story of the petitioner in the plaint. If the story introduced by the petitioner therefore could have been permitted to be incorporated by allowing the amendment in the plaint, the nature of partition suit filed by the petitioner could itself easily change into a suit for declaration of date of death of the father of the petitioner. It must be remembered that in such a situation the issues already framed way back in the year 2001 in the light of the written statement were not only required to be re-caste but even evidence had to be re-opened for determining the more important issue as to whether the deed of gift dated 18.6.1982 was executed by impersonating 5 a dead person. It is this aspect of the matter which in the light of the delay of more than five years in bringing the amendment, relying on a death certificate obtained after the filing of the suit and seeking to displace the admission already made in the plaint by the plaintiff-petitioner, which would make the amendment also malafide. The court below, therefore, has not committed any error in rejecting such belated and malafide amendment and this Court would find no reason to differ with the reasonings recorded by the court below in the impugned order. That being so, this application is wholly misconceived and is hereby dismissed with the observation that whatever has been recorded by this Court in course of dismissing this civil revision application are prima- facie findings based on perusal of the averments in the civil revision application including its annexures and/or plaint/written statement which would not be binding on the trial court while deciding the suit on merit on the basis of the evidence laid before it. Surendra/ (Mihir Kumar Jha, J.)