Judgment:
ORDER
M.Y. Eqbal, J.
1. This application under Article 227 of the Constitution of India is directed against the order dated 20.7.2006 passed by Additional District Judge, Chatra in Title Appeal No. 03 of 2003 whereby he allowed amendment petition filed by defendants-respondents at the appellate stage.
2. The plaintiff-petitioner and respondent No. 12 filed a suit being. Title Suit No. 04 of 1993 for a decree for specific performance of contract directing the respondents to execute and register the sale deed in respect of the land specified in the schedule of the plaint.
3. Plaintiffs case, inter alia, is that the suit property was held and possessed by the maternal grandmother of the defendants who in her life time gifted the property to her daughter Bibi Jamila Khatoon (mother of the defendants). Bibi Jamila Khatoon accepted the gift and came in possession of the suit property. She died leaving behind six sons and five daughters who inherited the suit property. Further case of the plaintiff is that defendant Nos. 10 and 11, two daughters of Bibi Jamila Khatoon, were unmarried. Defendant No. 1 being the eldest brother, with the consent of the defendants for raising money for marriage expenses, entered into an, agreement with defendant Nos. 1 to 4 who executed an agreement to sell and a sum of Rs. 25000/- was paid as advance consideration. Some of the defendants, in token of their consent, also put their signatures on the agreement dated 12.2.1993. The plaintiffs further case is that a further sum of Rs. 90,000/- by way advance consideration was paid and defendant Nos. 7 to 11 also executed another agreement dated 14.2.1993 in favour of the plaintiff acknowledging earlier payment of Rs. 25,000/- was agreed to be executed and registered.
4. The defendants filed their written statement and contested the suit alleging. inter alia, that, defendant No. 1 never executed the agreement on behalf of the other co-sharers also, nor assured the plaintiff to get the sale deed executed by the other co-sharers. In fact, defendant No. 1 along with defendant Nos. 2 and 3, negotiated to sell their share only.
5. The suit was finally heard by Sub-Judge, Chatra who in terms of judgment dated 21st July, 1999 decreed the suit. Aggrieved by the said judgment and decree, the defendants preferred appeal being Title Appeal No. 03 of 2003. At the appellate stage, the defendants-appellants filed an application under Order VI, Rule 17, CPC for amendment of the written statement. By the proposed amendment, the defendants sought to introduce the facts that the consideration amount was advanced in respect of their share in the suit property and not for the entire suit property. They also proposed to change the area of the suit land and further that there has been interpolation in the last portion of the deed and there has been forgery of the signature of defendant Nos. 5 and 6 alleging that they never signed the agreement dated 12.2.1993. The defendants also proposed to introduce the fact that the agreement dated 14.2.1993 was not the original agreement rather it was forged and fabricated document.
6. The Court below, after hearing the parties, allowed the amendment of the written statement mainly on the ground that the proposed amendment has been brought only with a view to make clear the vagueness and remove the ambiguity of the statements of fact regarding approximate share of the defendants. The Court below further held that the proposed amendment will not change the nature and character of the suit.
7. I have heard Mr. S.K. Sharma, learned Counsel appearing for the petitioner, and Mr. P.K. Prasad, learned Counsel appearing for the respondents.
8. For better appreciation the, relevant portion of; the impugned order passed by the Court below is reproduced herein below which reads as under:
Since on the same set of fact and cause of action the proposed amendment has been brought and as such the question of limitation does not arise. The proposed amendment is not the prejudicial to the plaintiff and no injury is done to him and the proposed amendment is not surprising for the plaintiff as the statement of fact already existed and present in the written statement and the plaintiff taking the statement of fact already pleaded in the written statement, has produced evidence and cross examined the witnesses of the defendants including defendant No. 5 who has denied his signature on the agreement for sale and as such I do not find substance in the argument of the learned advocate for the respondent plaintiff that it is prejudicial to the plaintiff.
9. In my opinion, the Court below has committed serious error of law in allowing the amendment at appellate stage particularly when the facts sought to be introduced by the defendants, have already been pleaded and evidence have been led. Not only that, from the proposed amendment it transpires that the defendants actually want to withdraw some of the admissions which have been made in the pleadings and further that the defendants want to bring some new facts which is not permissible in law. The Court below has not considered the matter in its right prospective and the impugned order suffers from serious error of law.
10. For the aforesaid reasons, this writ petition is allowed and the impugned order passed by the Court below is set aside. Since the appeal is pending for the last four years, the Court below is directed to hear and dispose of the appeal as ex-peditiously as possible.