IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1061 of 2006 SUKHO PASWAN Versus SONELAL CHAUDHARY & ORS ----------- 7. 6.1.2009 Heard counsel for the petitioner and the counsel for the opposite parties. Strictly speaking the court below ought to have taken into account that there was a subsequent event necessitating amendment in the plaint, inasmuch as purcha which has been issued under the provisions of Bihar Privileged Persons Homestead Tenancy Act (hereinafter referred to as the ‘Act’) was dated 22.5.2004. Any subsequent event capable of changing the right of title in the suit land was, therefore, ipso facto required to be taken into account in that very suit itself. That apart this Court has gone into the averments made in the plaint and has found that the suit land, Schedule I, is for a larger area, 88 decimals in plots no. 3005, 3007 and 3571, whereas the purcha in question under the Act is confined to 6 decimals. Thus, the subsequent event of grant of purcha clouding the right of the 2 plaintiff petitioner for 6 decimals out of 88 decimals was definitely required to be gone into and if for that purpose an amendment was sought the same could not have been refused. Mr. Birenra Prasad Verma, learned Senior counsel appearing on behalf of the opposite parties no. 1 and 2, however, has raised his apprehension that on account of subsequent event and the amendment sought with regard to setting aside the purcha under the Act the suit itself would not be maintainable in view of bar created under section 18 of the Act. This Court at the moment will not go into this question primarily for the reasons that the same was not taken into account by the court below while passing the impugned order. It is true that there is a bar under section 18 of the Act with regard to entertaining a suit as in respect of any order passed under the Act. That however is qualified with two exceptions, namely, fraud and/or want of jurisdiction. The petitioner in the amendment petition has definitely made out some case of fraud and therefore, 3 it cannot be said at this stage as to whether the suit will be barred even in respect of plot no. 3005 on account of issuance of purcha during the pendency of the suit. This aspect of the matter with regard to bar under section 18 of the Act, however, will be required to be gone into separately at the time of final hearing of the suit and in the event the court below is satisfied that the purcha granted under the Act was given validly strictly in terms of the Act, it will proceed to decide the question of title only in respect of the other two plots leaving the plot for which purcha was granted. However, in the event the court below is satisfied that the purcha granted under the Act was by way of fraud, it will also decide the suit as a whole including the relief being sought through the amendment petition. With the aforementioned observations and directions this application is allowed. The impugned order is set aside and the amendment prayed for by the petitioner is allowed to be incorporated, 4 subject to payment of cost of Rs. 2500/- by way of cost for the delay of almost two years caused for carrying out such amendment. (Mihir Kumar Jha,J.) Surendra/