Nawab Sah @ Md. Nawab Ali vs Md. Mustafa and Others

P.K. Deb, J.—I.A. No. 1616 of 2002 has been filed by the Respondents under Order 6, Rule 17 of the CPC for amendment of the plaint in Title Suit No. 4 1990. On previous occasion similar petition was filed in I.A. No. 4338 of 2001 but the same had been dismissed for default as the Counsel for the Respondents-Petitioner could not reach the Court when the matter was called out. The Respondent Petitioners were the Plaintiffs along with Respondent No. 16 as Plaintiff No. 14 had filed the suit for declaration of title over the property detailed in Schedule-ll of the plaint and for declaration that the entry made in the recent Municipal survey records in Schedule-ll to be void. There was further declaration that instrument executed by Defendant No. 3 in favour of Defendant No. 2 of which recent Municipal records have been prepared is void, inoperative etc. etc, The plaint was amended on several occasions before the Court below. An amendment was sought in the Court below regarding some modification in respect of Schedule-ll and such amendment was al-lowed by the Court below but therein in place of Md. Mustafa by mistake Md. Amirul(sic) Sah was mentioned although all those lands were in possession of Md. Mustafa and the same has been sought to be coff(sic) rected. But when such amendment was(sic) allowed and corrections were made in the plaint it appears that due to inadvertence(sic) or by some person there was penning(sic) through some items which were never(sic) amended. Those have been specifically(sic) mentioned in paragraph-9 of the Petitioner(sic) itself. There is also a prayer for amendment of the prayer portion regarding po(sic) session and for which the Plaintiff-Respondents have undertaken to pay ad vslong(sic) Court fee. It should be mentioned here the on factual aspect the Plaintiffs'' suit was decreed and Defendants had filed the present appeal. On verifying the facts as stated by the Plaintiffs-Respondents the records of the Court below were called for and the amendment sought for and al-lowed by the Court below were scrutinised and it could be found that something more has been done in the plaint which was beyond the scope of allowance of amendment and naturally, the same requires to be corrected in the plaint itself. It is not an amendment but a correction in the plaint itself. Most of the amendments are of these categories. Regarding possession for which ad valorem Court fee is being undertaken (sic)to be paid. I do not find them could be any objection from the adverse party and if something is there on limitation, the same may be raised by way of additional written statement.

But the main objection of the Defendant-Appellants is that the previous petition was dismissed for default and, as such, a fresh petition does not lie under Order 6, Rule 17 of the Code of Civil Procedure. Reliance has been made to a full Bench decision as reported in Doma Choudhary and Others Vs. Ram Naresh Lal and Others, . That was in respect of a petition under Order 9, Rule 13 of the Code of Civil Procedure. A petition for amendment of plaint under Order 6, Rule 17 of the CPC stands on totally different footing as that of the petition under Order 9, Rule 13 of the Code of Civil Procedure. Moreover, that judgment of the Patna High Court has already been overruled by Bajrang Rai and Others Vs. Ismail Mian and Others, . Then his submission is that the prayer for specific possession barred by imitation is a matter of adjudication. On the face of it, it cannot be said so and in that way, Om Prakash Vs. Smt. Radhika Devi and Others, has got no Implication. The third objection is with regard to proviso as laid down under Order 6, Rule 17 of the CPC that no amendment should be allowed after disposal of the suit. This matter has been considered by various High Courts and by the Apex Court also time and again and it has been held that if justice wants, amendment could be allowed at the second appellate stage also. Here in the present case, I find amendments are mostly on the nature on correction of the plaint and some minor amendments to clarify the position. I do not find any bar in allowing such amendment. But definitely when such amendment has been sought at a belated stage then the adverse party should be properly compensated.

Very peculiarly Respondent No. 16 who happens to be Plaintiff No. 14 is now challenging the amendment petition and various submissions have been made on factual aspect of the case which are not to be considered here in the present case for amendment of the plaint. If Respondent No. 16 does not want to be a party in the plaint on amendment, he may do so according to his choice by taking recourse to the provisions of the CPC in the appeal.

On consideration of the materials on record and as per observation-made, I find that the amendment as sought for can be allowed only on payment of a cost of Rs. 1,000/- to be paid to the Defendant-Appellants within a period of one month as a precondition. The plaint be corrected accordingly as required under the provisions of the CPC and with a further condition that allowance of amendment regarding specific possession should be subject to payment of Court fee within the same period of one month as mentioned above.

On amendment being made in the plaint the Appellants may file additional written statement, if any, within a period of six weeks from the date of formal amendment and Respondent No. 16 may take recourse to law for clarifying his position as per the provisions of the Code of Civil Procedure.

The I.A. No. 1616 of 2002 is disposed of accordingly.