Gopal Chandra Ghosh vs Rani Ghosh Ors.

D.N. Patel, J.—The present petition has been preferred by the Petitioner against the order passed by the Sub Judge-II, Ranchi dated 22nd January 2011 in Title Suit No. 277 of 2005, whereby, the prayer for amendment in the written statement filed by the original Defendant No. 1 has been rejected.

Counsel for the Petitioner has vehemently submitted that the Petitioner is original Defendant No. 1, who is in possession of the suit property, as narrated at Item No. 1, which is now a patrol pump and therefore, the. following proposed amendment has been made, which reads as under:

38(a) That as Ranchi has became capital of State of Jharkhand. There has been sudden sprout of number of vehicle in the town and consequently consumption of diesel petrol and other petroleum products has also increased. It is now difficult to accommodate all the vehicles which come to the patrol pump to purchase petrol/diesel. If the Plaintiff is alloted the land in item No. 1 to the schedule in lieu of her 1/3 share there will be difficulty in running the business. The Defendant No. 1 my therefore allowed to retain entire properly described in item No. 1 to the schedule of the plaint in lieu of which Defendant may be paid welty money or the Plaintiff may be compensated from the other land/property.

It is stated by the learned Counsel for original Defendant No. 1 that by making this prayer, as stated in the proposed paragraph No. 38 (a) of the written statement, no prejudice is going to be caused to the original Plaintiff nor it will change the nature of the suit and, therefore, such an amendment ought to have been allowed by the trial Court. The suit is ultimately to be decided on the basis of the evidence to be taken. By merely allowing the amendment application, preferred by the Defendant No. 1, the right of the original Plaintiff can never be said to have been curtailed, nor it will change the nature of the suit at all.

Counsel appearing for the contesting Respondent has submitted that the original Plaintiff is the widow of one of the co-sharers of the property in question, more particularly narrated at Item No. 1 in the suit. It is further stated that the amendment will change the nature of the suit and already one witness from the Plaintiffs side has been examined. Therefore, rightly the learned trial Court has brushed aside the application for amendment in the written statement. Counsel for the Respondent has also relied upon two cases as reported in Ganesh Trading Co. Vs. Moji Ram, and A.K. Gupta and Sons Vs. Damodar Valley Corporation, . He has further submitted that a new idea cannot now be inserted in the written statement, since in the proposed amendment being Paragraph-38 (a) of the written statement, prayer has been made by Defendant No. 1 that he has 1/3rd share.

Having heard learned Counsel for the parties and looking to the facts of the case, it appears that the proposed amendment in the written statement will not change the nature of the suit. Moreover, even if the case of the original Defendant is taken on a highest pitch, as stated by the Counsel for the Petitioner (original Defendant No. 1), what is suggested in paragraph-38 is nothing but is a request, as the property described at Item No. 1 in a Partition Suit No. 277 of 2005 is wholly in the possession of the original Defendant No. 1, which is patrol pump and therefore, if the trial Court is bifurcating the property as item No. 1, then it will be difficult to manage with the rest of the part given in the share of the original Defendant No. 1, as a patrol pump, and therefore, it is simply prayed to the trial Court by way of amendment that if the trial Court is giving the property at item No. 1 to the Petitioner, to which the Petitioner is incidentally entitled to, then also the remaining part of the property at item No. 1 may also be given to the Petitioner, so that the Petitioner may effectively and efficiently use the property as patrol pump and the monetary compensation may be awarded to rest of the co-sharers, so far as the item No. 1 is concerned. Amendment cannot be brushed aside on merits at the amending stage itself, but, the amendment can be brushed aside on the basis of the evidence on record. This aspect of the matter has not been properly appreciated by the trial Court.

Looking to the judgments relied upon by the Counsel for the Respondents and also looking to the peculiar facts of the present case to the effect that the original Defendant No. 1 is seeking amendment in the written statement and also looking to the part prayer that what is suggested in the proposed amendment in paragraph-38 (a) of the written statement is nothing but a simple prayer to the trial Court to allot the whole property as item No. 1, as narrated in Partition Suit No. 277 of 2005 to the Defendant and nothing more is being claimed by original Defendant No. 1. Looking to the fact, all that depend upon the evidence, the trial Court may allow or reject the claim made by Defendant No. 1. I hereby quash and set aside the order passed by the trial Court dated 22nd January 2011. I hereby further direct Rs. 1000/- which will be deposited by the original Defendant No. 1 within fifteen days from today towards the cost. I hereby further direct the trial Court to dispose of Partition Suit No. 277 of 2005 as expeditiously as possible and practicable within a period of six months from the date of receipt of a copy of this order.

This writ petition is, accordingly, disposed of with the aforesaid observations.