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Judgment
No one appears for the respondents.
By an order dated 13.07.2006 further proceeding in Eviction Suit No.32 of 1987 was stayed by this Court.Â
The petitioners - defendants in Eviction Suit No.32 of 1987 - are aggrieved of a part of order dated 20.03.2006 by which the application for
amendment has been allowed.Â
Plea taken by the petitioners is that after dismissal of the suit way back in the year 1991, on remand of the suit for a fresh trial application for
amendment in the plaint was not maintainable. Referring to the judgment in “J. Samuel & Ors. vs. Gattu Mahesh & Ors.â€Â reported in (2012) 2
SCC 300, the learned counsel for the petitioners submits that plea of typographical error in the plaint would not overcome the requirement ofÂ
“due diligence†under proviso to Order-VI Rule 17 CPC and thus cannot be a ground to permit amendment in the plaint. Â
In the counter-affidavit filed by the respondents in the present proceeding they have asserted that the petitioners own their own pucca house;
petitioner no.3 is a retired person whereas petitioner nos.1 and 2 are running jewellery shops. The respondents have further asserted that the suit
premises in which the original defendant was inducted as a tenant for residential purposes, now has been converted for commercial use by the
defendants.
Briefly stated, Eviction Suit No.32 of 1987 was instituted by Shaileshwar Prasad and Maleshwar Prasad, both sons of Sri Bhubaneshwari Prasad
for a decree for eviction of the defendant-Mohar Sao from the suit premises and for recovery of khas possession of the suit premises to them and for
a decree for realization of Rs.1,120/- being arrears of rent, damages and compensation with rent pendente lite and future @ Rs.15/- per month. The
suit was brought on the ground of default in payment of rent, substantial structural change in the suit premises, bonafide personal necessity of the
plaintiffs, particularly plaintiff no.2, besides other grounds. The plaintiffs have pleaded that they are owners and land-lords of the schedule-A
properties. Initially the defendant was inducted as tenant by their father, however, the tenancy was terminated and Title Suit No.371 of 1961 was
instituted for eviction and realization of rent. During pendency of that suit plaintiffs’ father died and they were substituted in the suit. A
compromise petition was jointly filed by the parties and Title Suit No.371 of 1961 was decreed in terms thereof. The plaintiffs have further pleaded
that the suit premises is a lease-hold property; the State of Bihar is the lessor and the plaintiffs are the lessee. In the last Cadestral Survey the suit
premises was recorded in the name of father of the plaintiffs which is comprised under Khata no.40 of Village Nawada, Thana no.139, Police Station
and District- Hazaribagh. This description of the suit property in paragraph no.7 of the plaint has now become an issue for amendment. The plaintiffs
have pleaded that detailed description of the suit property is mentioned in the Khatiyan and the Decree.
Order-VI Rule 17 CPC confers powers upon the court to permit amendment in the pleadings. After the amendment in the Code of Civil
Procedure in the year 2002, a statutory restriction on the powers of the court under Order-VI Rule 17 CPC has been incorporated through proviso to
Order-VI Rule 17 CPC. It provides that after the trial in the suit has commenced parties shall not be permitted to amend the pleadings. By now effect
of proviso to Order-VI Rule 17 CPC has been explained in various judgments by the Supreme Court. While holding that proviso to Order-VI Rule 17
CPC is mandatory, the Supreme Court has observed that if the proposed amendment in the pleadings is necessary for adjudication of the real
dispute in the suit, it shall be permitted [refer “North Eastern Railway Admn. vs. Bhagwan Das†reported in (2008) 8 SCC 511]. It is also well-
settled that amendment in the pleadings can be permitted at any stage of the trial, even at the stage of final hearing in the suit. Â
In paragraph no.7 of the plaint the plaintiffs have averred as under:Â
  “7. That the suit premises is a lease-hold property of which the State of Bihar is Lessor and the plaintiffs are Lessees. The suit premises
during the last Cadestral Survey were recorded in the exclusive name of Sri Bhubaneshwari Prasad father of the plaintiffs under Khata no.40, village
Nawada, Thana No.139, Police Station and District Hazaribagh. ………â€Â Â
The plaintiffs are seeking amendment in para-7 by incorporating the following:
 “1. The following be added in paragraph 7 of the plaint- “The suit premises in the Khatian of Khata No.40 of village Nawada stands
recorded as “Makan-1, Sahan-1, building lease-hold†and described in the decree of Title suit No.371/61 hereunder:-
 “One Kacha and pucca tiled house containing 3 rooms and a varanda on plot no.49, Holding No.135 in Ward No.V, Hazaribag Municipality in
Mauza Nawada, P.S.-Hazaribag, No.139, District Hazaribag, bounded as follows:-
 North-Plot no.48 and 50   East-Municipal Lane   South-Plot No.149, Holding No.134 of plaintiff  West-Plot No.48 belonging to Smt. Janki
Devi, wife of Late Bhagwan Prasad and a galiâ€.
In Schedule “A†of the plaint, the following be inserted in between the words “District Hazaribag†and “North†with one Katcha and
pucca tiled house, containing three rooms and a verandah whereon defendants run a Jewellery shop under the name and style of M/s NEELAM
JEWELLERS and bounded byâ€.
In Schedule “A†of the plaint, the following be inserted in between the words “within†and the word “OldWard No.V and new†and
the figure “60†be replaced by the figure “50â€.Â
Schedule-“A†property has been described in the following manner: Â
Holding No.135 within Ward No.IX of the Hazaribagh Municipality within Khata No.40, Plot No.49, Area 0.03 acre in village Nawadah, ThanaÂ
No.139, Police Station Sadar Hazaribagh, Disrict Hazaribagh, North â€" Plots No.48 and 60 and a well South â€" Municipal Lane East â€
Municipal Lane West â€" Holding No.133 over Plot No.48.â€
When description of the suit property as described in paragraph no.7 of the plaint, schedule-A to the plaint and the amendment application is
compared with each other, it is found that there is no inconsistency or change in the description of the suit property as pleaded in the amendment
application. The plaintiffs have pleaded that description of the suit property which they intend to incorporate in paragraph no.7 of the plaint would
appear from Khatiyan and the Decree in Eviction Suit No.371 of 1961. This stand of the plaintiffs has not been disputed by the defendants and, if
this is so, if amendment in paragraph no.7 of the plaint to fully describe the property is not permitted, description of the suit property which was initially
let out to the petitioner’s father cannot be established. This is important also for the reason that the plaintiffs have taken a plea of material
alteration of the suit property by the defendants. In fact, the aforesaid amendments in the plaint are clarificatory only and no new fact has been sought
to be incorporated in the plaint.  It has also to be kept in mind that the trial commenced after about 16 years of the institution of suit. The proposed
amendments in the plaint which have been permitted by the trial court are indeed necessary for adjudication of the dispute.
Plea taken by the petitioners that after the suit was dismissed on merits vide judgment dated 22.02.1991 amendment in the plaint cannot be
permitted, merits rejection. Against the judgment dated 22.02.1991 in Eviction Suit No.32 of 1987, the plaintiffs’ legal heirs preferred Eviction
Appeal No.3 of 1991 which was allowed vide judgment dated 30.07.2003. It is not in dispute that the suit was remitted back to the trial court to
proceed from the stage of plaintiffs’ evidence and before they started examining their witnesses the plaintiffs have filed the application for
amendment in the plaint. May be it can be argued that trial of the suit has commenced â€" there is serious debate on this and the issue has been
referred to a larger Bench of the Supreme Court; whether trial in the suit commences on settlement of issues or when the plaintiff starts examining his
witnesses â€" it is a fact that the suit still is at the initial stage. In J. Samuel’s case it was a suit for specific performance of contract of sale in
which at the stage of arguments an application for amendment in the plaint to incorporate readiness and willingness of the plaintiff to perform his part
of the contract which is a mandatory requirement under section 16(c) of the Specific Relief Act was filed. Plea taken by the applicant was “type
mistakeâ€. In these facts it was held that omission of a specific plea mandatorily required by law to be incorporated in the plaint would amount to
lack of due diligence. The Supreme Court has observed that, “….. the act of neglecting to perform an action which one has an obligation to do
cannot be called as a typographical error.â€Â Â
In the background of the aforesaid facts, when legality of the impugned order dated 20.03.2006 is examined, I find that the trial Judge has not
committed any error by permitting amendment in the plaint.
In view of the fact that the eviction suit was instituted more than 30 years back, the trial Judge is directed to dispose of Eviction Suit No.32 of
1987 within a period of six months. Parties shall not be granted any adjournment but for just excuse for which an appropriate application
accompanied with document, if any, shall be filed. If for any reason extension of time beyond six months is required, an appropriate application shall
be moved before this Court. Â
The writ petition is dismissed. Interim Order dated 13.07.2006 stands vacated.