PATNA, India, July 2 -- Patna High Court issued the following judgment on June 27:
Heard learned counsel for the petitioners as well as learned counsel for the respondents.
2. The present civil miscellaneous petition has been filed against the order dated 23.03.2019 passed by the learned Sub Judge-VII, Saran at Chapra in Title Suit No. 169 of 2014 whereby and whereunder the learned Sub Judge rejected the amendment petition dated 09.08.2018 filed by the plaintiffs under Order VI Rule 17 of the Code of Civil Procedure (for short 'the Code').
3. Learned counsel for the plaintiffs/petitioners submits that the petitioners are the plaintiffs before the learned trial court and they filed the Title Suit No. 169 of 2014 against the defendants/respondents for declaring the sale deed executed by defendant no.2 in favour of defendant no.1 on 05.12.2013 as null and void and not binding upon the plaintiffs with regard to schedule property as mentioned in the plaint. After the suit proceeded, in April, 2018, the plaintiffs were dispossessed from the suit property. One Rajni, who was Angan Bari Sewika, was handed over the premises and she was won over by the defendant no.1 and she started favouring defendant no.1. Learned counsel further submits that relief asked for in the plaint was only with regard to declaring the sale deed executed on 05.12.2013 by defendant no.2 in favour of defendant no.1 as forged and fabricated, null and void and inoperative. But under the changed circumstances, the necessity arose for adding in the relief portion the recovery of possession of the suit and for adding Rajni the Angan Bari Sewika as party to the suit. The defendants filed their rejoinder to the said application. However, the learned trial court, vide order dated 23.03.2019, rejected the prayer for amendment in the plaint. The said order is not proper and correct for the reason that the plaintiffs/petitioners sought to bring the amendment regarding the subsequent event as he has been dispossessed from the suit property at the instance of the defendants. Learned counsel further submits that the persons sought to be added as defendants are the persons who are having the possession of the suit property at this moment and they are necessary party. But these facts were not considered by the learned trial court and the order rejecting the amendment application is not sustainable. Learned counsel further submits that the plaintiffs/petitioners would be greatly prejudiced if the amendment is not incorporated in the plaint. Learned counsel relied on the decision of the Hon'ble Supreme Court in the case of Sampath Kumar vs. Ayyakannu & Anr., reported in AIR 2002 SC 3369, wherein, in somewhat similar circumstances, the Hon'ble Supreme Court held that the basic structure of the suit was not altered by the proposed amendment when the suit was initially filed for issuance of permanent prohibitory injunction alleging the plaintiff's possession over the suit property and subsequently amendment was sought for relief of declaration of the title to the suit property and consequential relief of delivery of possession. Learned counsel further submits that in that case also the amendment was sought almost 11 years after the date of institution of the suit and the amendment was allowed on the ground that it was necessary to avoid multiplicity of litigation and it has further been held that it would a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. Thus, the learned counsel submits that the impugned order is bad in the eye of law and same needs to be set aside.
4. Learned counsel appearing on behalf of respondents contends that there is no infirmity in the impugned order and the same does not need any interference. Learned counsel further submits that initially the suit was filed seeking declaration against sale deed dated 05.12.2013 apart from other reliefs. Now by way of amendment, the petitioners want to introduce the relief of recovery of possession and also declaration of title over the suit land. If the same is allowed, it will change the nature of suit. Learned counsel further submits that through the amendment petition, parties cannot be added. Thus, the learned counsel submits that nowhere in their plaint, the plaintiffs has mentioned about running of Angan Bari Centre on the suit land or letting out the premises to Rajni, Angan Bari Sewika, and getting rent from the said land. Rather, the construction over the suit property belongs to the defendants who has been coming into title and possession. Learned counsel reiterates that the plaintiffs want to bring out entirely a new case by way of amendment and the same is not acceptable as it will cause irreparable loss to the defendants. Thus, the learned counsel submits that there is no infirmity in the impugned order and the same be sustained.
The rest of the document can be viewed at https://patnahighcourt.gov.in/viewjudgment/NDQjMTAzMiMyMDE5IzEjTg==-A82DXn5XJV0=
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