IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13107 of 2011 Most.Nutan Devi @ Rajo Devi & Ors Versus Braj Bhushan Mehta @ Braj Bhus ---------------------------------- O R D E R 04. 25.10.2011. 1. Heard the learned senior counsel, Mr. Devendra Kumar Sinha on behalf of the petitioner and the learned counsel, Mr. Vinay Kirti Singh on behalf of the respondent. 2. This application under Article 227 of the Constitution of India has been filed by the defendant- petitioner against a part of the order dated 11.05.2011 passed in Title Suit No.138 of 2009 by Sub Judge Ist, Patna City whereby the Court below rejected the application filed by the petitioner for amendment of written statement. 3. The learned counsel for the petitioner submitted that there was some typographical mistake in the written statement and, therefore, application for amendment was filed seeking substitution of figure 17 by figure 34 in sixth line of page 24 of the written statement, but the learned Court below without applying judicial mind, generally observed that the defendants tried to withdraw the admission made in the written statement and rejected the said application. According to the learned counsel, there is no such admission in the written statement and moreover the learned Court below did not consider the fact that in the case still no issues have been framed and, therefore, the - 2 - amendment sough for is pre-trial amendment. 4. A counter affidavit has been filed annexing the plaint and the written statement. It appears that page 24 is a part of schedule ‘I’, where the description of plots and area have been mentioned. At page 24, khata No.1147 plot No.951 has been mentioned as 0.17 acres. By amendment, the defendant sought to correct the same as 0.34 acre. From perusal of paragraph 16 of the written statement, it appears that it is specifically pleaded by the defendant that the description of the land of the share of defendant are described in schedule at the foot of the written statement over which the defendants have been coming in possession. By amendment, this area of 17 decimal has been sought to be changed as 34 decimal. Admittedly, no issues have been framed. 5. In 2002 P.L.J.R. 187 Supreme Court (Prem Bakshi & Ors, Vs. Dharam Dev & Ors, the Apex Court has held that is it almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party. Perhaps, the converse is possible, i.e., refusal to permit the amendments sought for could in certain situations result in miscarriage of justice. 6. In 2008 (14) Supreme Court cases 364, (Raj Kumar Gurawara (Dead) through LRS. Vs. S.K. Sarwagi and Company Private Ltd & Anr). the Apex Court at paragraph 13 has held as follows : - 3 - “13. To put it clear, Order 6 Rule 17 CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso.” 7. Here, in this present case at our hand, admittedly, it is pre-trial stage and according to the defendant, there is typing mistake and instead of 34 decimal in the schedule, it has been typed as 17 decimal. So far statement of fact made in the written statement regarding any admission, there is no prayer for amending the same. Therefore, there is no question of any withdrawal of admission arises. Moreover, no prejudice will be caused to the plaintiff. 8. In such view of the matter, this application is allowed and that part of the impugned order is set aside and the amendment application filed by the defendant-petitioner is allowed. The petitioner shall carry on the amendment in the written statement within two weeks from receipt of a copy of this order in the Court below. Patna High Court, Patna The 25th day of October, 2011 Sanjeev/N.A.F.R. (Mungeshwar Sahoo,J.)