IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.839 of 2011 Harihar Singh S/o Late Ram Sakal Singh, r/o Dhanupura, P.S. Agiaon Bazar, P.O. Pitath, District- Bhojpur. . . . . . . Petitioner. Versus 1. Suresh Singh S/o Shivnath Singh @ Shivajee Singh. 2. Shivnath Singh @ Shivajee Singh s/o late Ram Sakal Singh. Defendant 1st set / respondent 1st set. 3. Kapil Muni Pandey, s/o Late Radha Pandey. Respondent 2nd set / defendant 2nd set. For the Petitioner : Mr. Aditya Narain Singh No.1, Adv. For respondent nos. 2 & 3 : Ms. P. N. Shashi Patanjali Rishi, Advs. ----------- 5/ 11.07.2011 The petitioner filed title suit no. 36 of 2006 seeking the following reliefs: The plaintiff and opposite party no. 2 are full brothers. Opposite party no. 2 is the son of opposite party no. 1. Opposite party no. 1 and 2 are defendant 1st set in the trial court. Opposite party no. 3 is the defendant 2nd set and he executed three sale deeds in the year 2005 in favour of the defendant 1st set. The property in dispute lies in front of the house of plaintiff and defendant 1st set. The plaintiff filed an amendment on 7.3.2008 under Order 6 Rule 17 and Section 151 of the C.P.C. The defendants filed rejoinder to the same on 05.05.2000. The plaintiff wants amendment in plaint to the effect that he gave Rs.50000/- to his brother Sheonath Singh, opposite party no. 2 on 24.12.2004 for joint purchase of land from opposite party no. 3 Kapil Muni Pandey and latter also executed deed of Ekrarnama in acknowledgment of the same. Counsel for the plaintiff – petitioner submits that 2 later on, only when his son, who is in military service came home in holidays, the Ekrarnama was found in his briefcase. The plaintiff further sought amendment to the effect, that in alternative, defendants be directed to refund the sum of Rs. 50000/- + Rs.5000/- with interest. The trial court rejected the amendment petition. Learned counsel for the plaintiff / petitioner submits that the trial court overlooked that explanations were provided for non- incorporation of those facts in the plaint. He submits that issues have also not been framed, as such the amendments should be allowed liberally. In support of his submissions petitioner relied upon decisions in case of K. K. Khandelwal vs. Mangal Prasad, reported in AIR 2006 MP 227 and in case of North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by L.Rs., reported in AIR 2008 SC 2139. On the other hand, Mr. P. N. Shahi, learned counsel for the respondent nos. 2 and 3 states that the plaintiff’s versions that he gave Rs. 50,000/- in the year 2004 for purchase of the plot in question is a cock and bull story. He submits that in case the plaintiff’s had given such heavy amount to the defendants 1st set, he would surely not have missed to incorporate such vital facts in the plaint, even assuming the Ekrarnama was not traceable. He submits that it is conspicuous that the plaintiff can remember the comparatively small amount of Rs. 5000/- given to defendant in the year 1981 for joint purchase of the plots and 3 would not remember the bigger sum of Rs.50,000/- he claims to have tendered in 2004. I have heard the learned counsel for the petitioner as well as respondents and perused the materials on record. The amendment in the plaint under Order VI Rule 17 of C.P.C. is generally considered liberally prior to framing of issues to do justice to the parties for decide the dispute, unless it causes injustice to the other side and brings out completely a new case. The plaintiff-petitioner in the plaint has prayed that three sale deeds executed by defendant 2nd set in favour of defendants 1st set be declared null and void. The plaintiff /petitioner has made out a case that he gave Rs.5,000/- to the defendant way back in the year 1981 as an advance for joint purchase of land from Kapil Muni Pandey. As the defendant 1st set violated the agreement, the plaintiff filed a suit with the prayer aforesaid. The plaintiff in the year 2008 through amendment wants to introduce further claim that he had given Rs.50,000/- to the defendant 1st set for joint purchase of land from Kapil Muni Pandey in the year 2004. He also wants to add that defendant 1st set also executed Ekrarnama acknowledging receipt of Rs. 50,000/- from the plaintiff for joint purchase of land. The amendment sought by the plaintiff has rightly been rejected by the trial court, as it would bring out a completely new case and defence. Besides this it would be very unlikely that a person would forget to incorporate that he had given a bigger amount of Rs. 50,000/- to the defendant recently in the year 4 2004 while remembering to incorporate a comparatively smaller sum of Rs.5,000/- that he gave to the defendant no.2 in the year 1981. Even if for the moment, I assume that Ekrarnama could not be located, still there could have been reference of tendering Rs.50,000/- to defendants in 2004 in the plaint. All these facts lead to the conclusion that the subsequent amendment is an after thought and has been sought to bring out completely a new case. The judgment rendered in case of North Eastern Railway Administration, Gorakhpur (Supra) relied upon by plaintiff-petitioner would not be of any help, as the facts of the cases are different. In the aforesaid case, the Hon’ble Apex Court held that amendment in plaint can be allowed even at an appellate stage, if it does not cause in justice to the other side. In the instant case, I find that the amendments in question sought, would bring out a new case and defence, which cannot be permitted. The petitioner next relied upon a Division Bench decision in case of K. K. Khandelwal vs. Mangal Prasad (Supra). In the aforesaid case, the court was considering the effect of amendment, which could entail ouster of jurisdiction of the court. The issue involved in the aforesaid case is entirely different than the one involved in this case. Thus, I do not find any merit in this application and it is accordingly dismissed. Uday/ (Samarendra Pratap Singh, J.)