1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 6185 of 2016 1. Haradhan Dhibar, S/o Late Amulya Kewat 2. Tarapado Dhibar, S/o Late Amulya Kewat 3. Dubraj Dhubar, S/o Late Amulya Kewat 4. Mithun Dhibar, S/o Late Sadhan Dhibar 5. Noni Gopal Dhibar @ Moni Gopal Dhibar, S/o Late Sadhan Dhibar All are R/o village Ramkanali, PODebiana, PSNirsa, DistrictDhanbad ... ... Petitioners Versus 1. The State of Jharkhand through Chief Secretary (Jharkhand), Project Building, PODhurwa, PSJagannathpur, DistrictRanchi 2. The Deputy Commissioner, Dhanbad, having office at Court More, PO,PS&DistrictDhanbad 3. The Additional Collector, Dhanbad, having office at Court More, PO,PS&DistrictDhanbad 4. The SubDivisional Officer, Dhanbad, having office at Court More, PO,PS&DistrictDhanbad 5. The Land Reforms Deputy Collector, Dhanbad, having office at Court More, PO,PS&DistrictDhanbad 6. The Circle Officer, Nirsa Circle, PO&PSNirsa, DistrictDhanbad ... ... Respondents ----------------- CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioners : Mr. Indrajeet Sinha, Advocate Mr. Lukesh Kumar, Advocate For the Respondents : Mr. Jayant Franklin Toppo, S.C. (L&C) ------------------ 07/11.10.2017 After the application dated 29.06.2016 for amendment in the plaint was rejected, the petitioners have approached this Court.
2. Briefly stated, Title Suit No. 261 of 2014 was instituted for declaration of the plaintiffs' raiyati right, title, interest and possession over the suit schedule property. A decree for confirmation of their possession and permanent injunction restraining the defendants from interfering with the plaintiffs peaceful possession over the schedule land was also sought. The petitioners have claimed their right, title and interest over the 2 suit property on the basis of a Hukumnama granted to their father by the exlandlord who accepted the rent from their father. It is pleaded that the exlandlord namely, Gurupado Shil and Kashi Nath Shil filed return of their tenureship, on the basis of which Compensation Case No. 5217 of 195556 was registered. In the said return (BibraneeI) name of Amulya Kewat appears at Sl. No. 55 and 56. It also reflects quantum of rent realized from Amulya Kewat. It is further pleaded that the plaintiffs filed cases under Section 87 of C.N.T. Act for correction in the entries in R.S. Khata No. 83, MouzaGopalganj which were registered as Suit No. 2205 of 2007, disposed on 18.02.2009; Suit No. 2206 of 2007 which was disposed of on 03.06.2009 and Suit No. 91 of 2010 was disposed of by an order dated 14.08.2010. By these orders the Settlement Officer, Dhanbad directed deletion of the name of the defendants from R.S. Khata No. 83 and, accordingly, name of the plaintiffs got substituted therein. The plaintiffs have claimed that the settlee namely, Amulya Kewat reclaimed the suit land as agriculture land under the right of Korkar and continued in possession by growing paddy and other crops from 1940. It is asserted that they excavated small tanks over the land for the purpose of irrigation. The suit was instituted after the notice under Section 80 CPC was served upon the defendants on 20.06.2014. 3. Initially the defendants were debarred from filing written statement, however, by order dated 14.09.2015 the written statement was taken on record. The defendants have claimed that the entire suit schedule land pertaining to Mouza Gopalganj is partly stonny and partly puratan patit. It is asserted that the vacant fallow lands recorded under Gair Abad Malik Khata belong to the State. Possession of any other person over a part of the suit schedule land has been disputed and claim of settlement through Sada Hukumnama has been resisted on the ground of bar under Section 16 (sic Section 17) of the Indian 3 Registration Act. The defendants have also raised a plea that the plaintiffs have failed to produce any Kabuliyat executed by the settlee to the exlandlord and thus, the settlement by way of lease was void abinitio. 4. In the pending suit, application under Order XXXIX Rule 1 and 2 CPC was filed by the plaintiffs, however, it was dismissed on 06.10.2015. The plaintiffs/petitioners came to this Court in M.A. No. 63 of 2016 which was withdrawn on 25.02.2016. The second application vide M.A. No. 125 of 2016 also stood withdrawn on 19.03.2016, and the petitioners again came to this Court in M.A. No. 169 of 2016 challenging order dated 06.10.2015, whereby application for injunction was dismissed. This Miscellaneous Appeal was also dismissed as withdrawn on 21.07.2016 with liberty to the petitioners to move the Court, in accordance with law. It is stated that pursuant to this order the plaintiffs have filed a fresh application on 06.12.2016 for temporary injunction. In the meantime, the plaintiffs filed an application under Order VI Rule 17 CPC, on 29.06.2016, seeking the following amendments in the plaint : (A) Correction in the name of plaintiff no. 5; “Moni Gopal Dhibar” to be written as “Noni Gopal Dhibar”. (B) The word “barred” in para no. 4 of the plaint to be written as “Gariabad”. (C) In para no. 6 the expression “BibraneeI” to be replaced by the word “BibranI”. (D) Add the relief in Relief para 19(f) : “19(f) for a decree for demolishing new construction of the land in question, constructed by the defendants and a decree for recovery of possession to the plaintiffs in the said land”. (E) Correction in the Schedule as under :
4. ScheduleI MouzaGopalganj, Mouza no. 140, PSNirsha, AnchalNirsha, DistrictDhanbad. C.S. Khata No. 23, C.S. Plot No. 24, Plaintiffs demand area 03 acres 82 decimals out of total area 5 acres 82 decimals. C.S. Khata No. 50, C.S. Plot No. 164, Plaintiffs demand area 3 acres out of total are 3 acres 67 decimals. R.S. Plot Number of C.S. Plot No. 24 and 164 are 19, 20, 27, 28, 29, 30, 31, 32, 33, 34, 35, 46, 47. Schedule2 MouzaGopalganj, Mouza No. 140, P.S. Nirsha, Anchal Nirsha, DistrictDhanbad. C.S. Khata No. 50, C.S. Plot No. 33. Plaintiffs demand area 11 acres out of total area 14 acres 50 decimals. 5. Application for amendment was resisted by the defendants on the ground that it would change the nature of the suit and if allowed, it would highly prejudice the defendants. By an order dated 24.08.2016 the trial court has dismissed the application for amendment on the ground that the plaintiffs have failed to disclose the plot numbers and the date on which the defendants have allegedly constructed the building. The learned trial Judge has held that amendment in the schedule of land is not formal in nature and it would definitely affect the nature of the suit. 6. Assailing the order rejecting amendment in the plaint, Mr. Indrajit Sinha, the learned counsel for the petitioners, submits that the impugned order dated 24.08.2016 does not take note of the settled law that generally plaintiff should be permitted to amend the plaint, if the trial has not commenced. As 5 against this, the learned State counsel contends that by introducing new facts and changing the schedule of land, the plaintiffs are trying to get a relief which otherwise they cannot get, that is, recovery of possession. It is submitted that if the plaintiffs are permitted to change the schedule of land, after the defendants have disclosed their defence by filing written statement, it would highly prejudice them. 7. Proviso to Order VI Rule 17 CPC provides that no application for amendment shall be allowed if the trial has commenced, unless the court has come to a conclusion that inspite of due diligence the party could not have raised the issue which he intends to incorporate through a amendment, before commencement of the trial. It is now no longer in dispute that before commencement of the trial, if the other party is not prejudiced, generally application for amendment shall be allowed. Leaving aside the controversy whether the trial would commence on framing of the issues or when the plaintiff examines witnesses, in the present case it is admitted that in the suit issues have yet not been framed and while so, bar to amendment in the pleadings, as engrafted in proviso to Order VI Rule 17 C.P.C. is not a hurdle for the plaintiffs, and delay in filing the application for amendment, is not a ground on which the application dated 29.06.2016 has been dismissed. In “North Eastern Railway Admn. Vs. Bhagwan Das” reported in (2008) 8 SCC 511, the Hon'ble Supreme Court observed as under: 16. “Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. 6 Kalgonda Shidgonda Patil which still holds the fields, it was held that all amendments out to be allowed which satisfy the two conditions : (a) of not working injustice to the other side; and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.”
8. A perusal of application dated 29.06.2016 filed under Order VI Rule 17 CPC would disclose that first three amendments are purely formal in nature. The plaintiffs have pleaded that on account of typographical errors description of plaintiff no. 5 has been wrongly mentioned and errors in paragraph nos. 4 and 6 have crept in. It is admitted that these amendments were not opposed by the defendants before the trial court. Rejoinder to the petition under Order VI Rule 17 r/w Section 151 C.P.C. is extracted below:
1. That, the petition under reply is not maintainable either in law or on facts of the case as such fit to be rejected. 2. That, earlier similar nature of petition filed by the plaintiffs has been rejected as not pressed, therefore, plaintiffs are in habit of filing false and frivolous petitions for causing delay in disposal of the suit. 3. That, originally suit is filed for declaration and injunction, and now plaintiffs are intending to get the relief for recovery of 7 possession by way of amendment of the plaint which will be change the nature and character of the suit, and the Defendants will be highly prejudiced if the proposed amendment be allowed as they have already filed their written statement. 4. That, so far other proposed amendments are concerned those are formal in nature.”
9. In so far as the schedule of land is concerned, in their rejoinder to application for amendment the defendants have not specifically opposed the amendments in Schedule1 and Schedule2 lands. Moreover, change in schedule of lands, in my opinion, would not change the nature of the suit. The suit is for declaration of plaintiffs' right, title and interest and confirmation of their possession over the suit lands. During trial of Title Suit No. 261 of 2014, it is for the plaintiffs to lead evidence for claiming their right, title and interest over the amended schedule of suit lands. The finding recorded by the trial Judge that the proposed amendment in the schedule of lands, if allowed, would change the nature of the suit, is patently erroneous. In so far as addition of relief for a decree for demolition of new construction and recovery of possession is concerned, it has come on record that during the pendency of the suit the defendants have raised constructions. It is wellsettled that to avoid any technical objection and multiplicity of litigation, the parties may be permitted to amend plaint/written statement, if subsequent developments take place. Another wellsettled principle is, that amendment if formal in nature and does not cause prejudice to the defendant can be allowed at any stage of the suit, even at the stage of final hearing. Except in few cases such as, a timebarred claim, merit of a claim sought to be incorporated through an 8 amendment in the pleadings, is not an issue which can be examined while deciding an application for amendment. 10. Moreover, the defendants' right to contest the relief sought by the plaintiffs can be taken care of by permitting them to file additional written statement. 11. In the above facts, I find serious infirmities in order dated 24.08.2016 passed in Title Suit No. 261 of 2014 and accordingly, it is setaside. Application dated 29.06.2016 stands allowed. The defendants shall be granted opportunity to file additional written statement. 12. The writ petition stands allowed. (Shree Chandrashekhar, J.) Tanuj/ A.F.R.