Krishna Kumar Sharma vs Subodh Kumar Thakur

The petitioner, plaintiff in Title Suit No. 23 of 2005, is aggrieved of order dated 11.06.2009 by which a part of amendment sought in the plaint has

not been allowed.

Plea taken by the plaintiff is that by deleting certain averments which have become redundant, nature of the suit would not change and moreover

the suit is at the initial stage and while so, rigours of proviso to Order VI Rule 17 C.P.C would not be attracted.

Title Suit No. 23 of 2005 was instituted for a decree for declaration of the plaintiff’s right, title and interest in the suit property and for a decree

for setting aside the gift-deed dated 08.04.1968 as well as the sale-deed dated 05.02.2005. The plaintiff claims himself son of defendant no. 2.

Her husband is Bishundeo Prasad Thakur. The plaintiff has asserted that the gift-deed executed by the said Bishundeo Prasad Thakur in favour of his wife is void, illegal and inoperative. The defendants have contested the suit by filing a written statement, pleading that the said Bishundeo Prasad

Thakur who was employed at Asansole purchased the property at Mouza- Nilkanthpur from his own savings and out of love and affection he has executed a gift-deed in respect of the said property in favour of his wife. Similarly, validity of the sale-deed has also been asserted by the

defendants. Through the amendment application dated 15.04.2009 the plaintiff intended to incorporate additional paragraph-21/A below the existing paragraph no. 21 to plead that the sale-deed executed by defendant nos. 2 and 3 in favour of defendant no. 1 is illegal and violative of Section 44 of the Transfer of Property Act read with Section 4 of the Partition Act.

As noticed above, validity of sale-deed dated 05.02.2005 has already been challenged by the plaintiff and thus, the aforesaid

amendment has rightly been permitted by the trial Judge. In so far as deletion of paragraph nos. 3, 4, 7, 9, 10, 12 and 14 of the plaint is concerned,

plea taken by the defendants is that the plaintiff now seeks to resile from the admissions pleaded in the aforesaid paragraphs. In my opinion, in view of challenge to the gift-deed dated 08.04.1968 and the sale-deed dated 05.02.2005, averments in the aforesaid paragraphs in the plaint, if permitted to be withdrawn, it would definitely change the entire complexion of the case. After the defendants have taken a specific stand, plaint averments which would have a bearing on the relief sought by the plaintiff cannot be permitted to be withdrawn. Such amendment in the pleadings would certainly cause serious prejudice to the other party. Moreover, withdrawal of such plaint averments cannot be said to be necessary for adjudicating real dispute in the suit and while so, the proposed amendments in the plaint cannot be permitted. The plaintiff, in fact, intends to re-write the plaint; these amendments are not by way of elaboration or explanation of the facts already pleaded in the plaint.

In view of the aforesaid facts, finding no infirmity in the impugned order dated 11.06.2009 the writ petition is dismissed.

Interim order dated 15.03.2010 stands vacated.

Let a copy of the order be transmitted to the trial court through FAX.