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Judgment
Gautam Kumar Choudhary, J
Petitioner is the original defendant no. 1 in Original (Title) Suit No. 37/2016 which was filed by the plaintiff (since dead) for the declaration of title over Schedule-A property of the plaint which is the land measuring 86 decimals under different plots of khata no. 298 in village Ramgarh, Thana No. 82 and District- Hazaribagh.
Plaintiff died during the pendency of the suit and defendant no. 1 (present petitioner) was transposed as plaintiff vide order passed by the learned Trial Court on 29.06.2022. The order of transposition was challenged by the defendant no. 2 before this Court in C.M.P. No. 1148 of 2023 without success and it attained finality.
The petitioner after transposition moved the trial Court seeking permission for accepting amendment plaint was filed and the same was rejected vide order dated 17.04.2023. The order of rejection was assailed by the petitioner before this Court in C.M.P. No. 598 of 2023 which was dismissed with the observation there was no illegality in the impugned order. It was further observed that the Petitioner will be at liberty to institute a fresh suit and move in accordance with law as per the provision under Code of Civil Procedure.
The petitioner moved the learned trial Court under Order VI Rule 17 and Order XXIII Rule 1 A read with Section 151 of the CPC for amendment in the original plaint of the suit, which has been rejected by the learned Trial Court and aggrieved by the order, the instant civil miscellaneous petition has been filed.
It is argued by the learned counsel on behalf of the petitioner that once permission for transposition has been accorded, the petitioner cannot be denied opportunity to file plaint which will amount to non-suiting the petitioner.
It is argued by the learned counsel on behalf of the opposite parties (defendant no. 2) that on 01.11.2022 the present petitioner (transposed plaintiff) moved the trial Court to accept the plaint submitted by the petitioner/plaintiff in place of the plaint filed by the original plaintiff. This petition was rejected inter alia on the ground that there was no provision for allowing the transposed plaintiff to file a fresh plaint. The said order was assailed in C.M.P. No. 598 of 2023, wherein the order passed by the learned trial Court was affirmed and civil miscellaneous petition was dismissed. Subsequent thereto the petition has been filed before the learned trial Court for the amendment in the original plaint which has been rejected by the trial Court against which the instant civil miscellaneous petition is filed.
FINDING
Petitioner was original Defendant no.1, who had contested the suit for declaration of title along with Defendant no.2. After the death of the plaintiff, he has been transposed as plaintiff to contest the suit against Defendant no.2. His earlier petition for accepting the plaint has been rejected. He now seeks amendment in the original plaint which was filed by the original plaintiff.
Plaints contain averment of facts supported by affidavit, and in the event a false averment on oath is made by the deponent, he can be proceeded against as per law. Once the Petitioner failed in getting his plaint accepted, the instant petition has been filed for amendment of a plaint which had not been filed by him, but was put by the original plaintiff. A party can be permitted to amend his own plaint, and cannot be permitted amendment to a plaint which was not even filed by him, that too when his petition to file plaint had been rejected.
Transposition in a title suit is fraught with consequential difficulties of pleadings. It was for this reason that an observation was made in C.M.P. No. 598 of 2023 by the co-ordinate bench of this Court giving liberty to the Petitioner to file fresh suit.
Under the circumstance this Court does not find any infirmity in the impugned order.
Civil Miscellaneous Petition accordingly stands dismissed.
Pending I.A., if any, stands disposed of.