IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9037 of 2011 Amar Chand Saraogi Versus Lalmati Devi & Ors ---------------------------------- O R D E R 20. 13.12.2011. 1. I have heard the learned counsel, Mr. Manan Kumar Mishra on behalf of the petitioner. Nobody appeared on behalf of the respondent. 2. The plaintiff has filed this application under Article 227 of the Constitution of India against the order dated 27.09.2006 passed by Munsif Bagaha, West Champaran in Misc. Case No.12 of 2005 whereby he has allowed the application dated 15.07.2006 filed by the respondent under Order 6 Rule 17. 3. The learned counsel for the petitioner submitted that this Misc. case has been registered on the basis of an application under order 21 Rule 97 of the Code of Civil Procedure filed by the respondent No.1, Lalmati Devi. The husband of this Lalmati Devi had contested the suit filed by the petitioner being title suit No.146 of 1966 / 112 of 1977 for declaration of title and recovery of possession. Originally, the suit was dismissed but in appeal, the plaintiff-petitioner’s suit was decreed and the second appeal filed by the defendant No.3 and 6 being second appeal No.74 of 2005 was dismissed by the High Court and, thereafter, the petitioner had filed execution case No.3 of 2005. In that execution case, the respondent No.1 filed application under Order 21 Rule 97 of the Code of Civil Procedure claiming title on - 2 - her independently and, therefore, the said application was registered as Misc. case No.12 of 2005. The respondent No.1 took all the same defence which has already been taken by her husband and, therefore, the application was not maintainable. However, the learned Court below allowed the amendment application filed by the respondent No.1 thereby the learned Court below has exercised a jurisdiction not vested in it by law. According to the learned counsel in execution case, Order 6 Rule 17 C.P.C. is not maintainable. But the learned Court below without considering the same allowed the amendment application. 4. As stated above, nobody appeared on behalf of the respondent. 5. From perusal of the record and the impugned order, it appears that admittedly, the Misc. case has been registered which is under Order 21 Rule 97 C.P.C. filed by the respondent No.1. This Misc. case has to be tried like a suit and as provided under Rule 101 of Order 21, the right title and interest of the respondent No.1 has to be investigated in this misc. case. According to Rule 103 of Order 21 C.P.C., the determination will be deemed to be a decree and appeal is maintainable. The respondent No.1 filed the amendment application alleging that there are some mistakes in the application under Order 21 Rule 97 and, therefore, sought amendment. The learned Court below after considering all these aspects of the matter allowed the amendment application. - 3 - 6. So far the respondent No.1 is concerned, the application filed under Order 21 Rule 97 will be deemed to be the plaint because it is the pleading of the respondent No.1 and on the basis of that, her claim will be decided after evidence. I, therefore, find that the learned Court below has rightly exercised the discretionary jurisdiction finding that the amendment sought for is necessary for determination of the real controversy arising between the parties. The merit of the amendment cannot be decided at this stage. Whether she will be granted the relief or not is a matter to be considered at the time of final hearing of the Misc. case. In my opinion, at this stage, the Court cannot reject the amendment application on the ground that ultimately the respondent No.1 will not be granted the relief sought in the amendment application. In my opinion, therefore, the learned Court below has rightly exercised a jurisdiction vested in it by law. As such it is not the case of jurisdictional error. Therefore, in supervisory jurisdiction, the impugned order cannot be interfered with. 7. In the result, this writ application is dismissed. Patna High Court, Patna The 13thday of December, 2011 Sanjeev/N.A.F.R. (Mungeshwar Sahoo,J.)