Shankar Rabidas vs Sundari Devi

Shree Chandrashekhar, J.—Aggrieved by order dated 07.02.2015 in Title Suit No. 02 of 2011 whereby, application for amendment in the plaint has been rejected, the present writ petition has been filed.

The petitioners are plaintiffs in Title Suit No. 02 of 2011. The suit was instituted for declaration of their title through adverse possession or alternatively, to direct the defendant to execute sale deed in performance of agreement dated 23.12.1997. The suit was contested by the defendant pleading that father of the plaintiffs namely, Shyamlal Rabidas executed a registered sale deed on 03.02.1993 in her favour and she was put in possession of the suit property. The defendant claimed that she and her sons have been cultivating the said land and the land has been mutated in their name. In the pending suit, the plaintiffs filed application for amendment on 01.08.2014. In the application under Order 6, Rule 17 , the plaintiffs sought to incorporate the following facts :

"At page 6, after para 14, new para 14(A) be added ''14 (A) that the plaintiff Jibadhan Das donated suit land under khata no. 189, plot no. 2896 area 1-1/2 dec. to Governor under scheme Jawahar Rojgar Yogna through an affidavit no. 16295 dated 5.8.2005 which was notorised by C. P. Mehta Notary Public, Hazaribag on which plaintiff constructed a House know as Angan Bari Kendra wherein Meena Devi, W/o Jiwadhan Rabidas has been teaching with knowledge whole world including the defendant''."

A perusal of the proposed amendment discloses that the plaintiffs have sought to incorporate entirely new fact which was not pleaded in the plaint. The averment that the plaintiffs donated the suit land through affidavit dated 05.08.2005 is a fact which cannot be said not to be within the knowledge of the plaintiffs. The plea taken by the plaintiffs in application for amendment that on 01.04.2014, the plaintiff no. 2 found the affidavit dated 05.08.2005 in a box is thus, patently false. Leaving aside the plea taken by the plaintiffs in the application for amendment, I find that the said application was filed after the plaintiffs examined several witnesses including the executor namely, Jiwadhan Rabidas. The trial court noticed that in his deposition he did not aver about affidavit dated 05.08.2005. Otherwise also, normally, amendment in the plaint is not permitted after the suit goes for trial.

Considering the aforesaid facts, I find no infirmity in the impugned order dated 07.02.2015 and accordingly, the writ petition stands dismissed.