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Judgment
S.B. Sinha, J.—This application is directed against the order dated 4.2.1991 passed by Sri Tabark Hussain, Subordinate Judge 3rd Court, Hazaribagh in Partition Suit No. 9 of 1982 whereby and whereunder the said learned court dismissed an application for amendment of the written statement filed on behalf of the petitioners.
The opposite Party No. 1 filed a suit for partition. Opposite party Nos. 2 to 6 and Opposite Party Nos. 7 to 17 were described, before the court below as defendants 1st set and 3rd set respectively.
The aforementioned defendants first set and third set are supporting the case of the plaintiff-opposite party No. 1.
The fact of the matter lies in a very narrow compass.
One Dublin University Mission was granted lease by the Khas Mahal authorities of various properties including the suit proper ties in the year 1927. The said lease expired sometimes in the year 1948, The aforementioned Dublin University Mission granted sub-lease in respect of a portion of the lease hold in favour of one Narayan Chand Bose, who admittedly was the predecessor, in interest of the petitioners and respondent No. 1 to 17.
The said Narayan Chand Bose died leaving behind his widow, six sons and two daughters. A partition suit being partition Suit No. 7 of 1947 was instituted by S.N. Bose and D.N. Bose, two sons of the aforementioned late Narayan Chandra Bose against their mother, other brothers and sisters.
In the said suit, they prayed for a preliminary decree for partition claiming 2/9th interest therein. The said suit was decreed on contest.
However, some properties were kept joined, the present suit has been filed by plaintiff-opposite party No. 1 for partition of the such properties, which were not partitioned in the earlier suit.
The defendants second set, petitioners inter alia, contended that a lease was granted in favour of Sri R.N. Bose by the Khas Mahal, authorities in the year 1954. According to the petitioners, a suit for partition was thus not maintainable.
It appears that in the aforementioned suit both parties closed their respective evidences and dates were fixed for hearing and arguments.
The defendants second set petitioners began their arguments first and after few days when their arguments were brought to be closed, they sought for adjournments on one pretext or the other.
An application for amendment for the written statement was filed on 27.10.1990 to which the plaintiffs objected. The defendants-petitioners thereafter, filed an application on 17.12.1990 when the aforementioned application for amendment of the written statement was taken up for hearing praying therein that they intend to withdraw the same. The said prayer was allowed.
However, another application for amendment of the written statement was filed on 9.1.1991.
By reason of the impugned order, the learned court below has rejected the said application.
Mr. B.K. Dey, the learned Counsel appearing on behalf of the petitioners submitted that the learned court below has passed the impugned order without taking into consideration the relevant facts inasmuch as, he failed to take into consideration that by reasons of the amendment in the written statement sought for, the petitioners were not introducing any new case which would result in a new trial but merely a new approach to the case already made out by them in their written statement was being made.
The learned Counsel, in this connection, has taken me through various paragraphs of the original written statements for the purpose of showing that by reason of the amendment sought for in the written statement, they intend to elaborate the points taken by them in their original written statement.
Mr. Dey further submitted that it is now a well settled principles of law that an application for amendment of written statement should be allowed more liberally than an application for amendment of the plaint.
The learned Counsel, in this connection has relied upon a decision of this Court in Lallan Prasad alias Raghubir Prasad and Ors. v. Mangla Prasad and Ors. 1990 (1) BLJ 197 as also a decision of the Supreme Court in Vineet Kumar Vs. Mangal Sain Wadhera, .
Mr. P.C. Roy, the learned Counsel appearing on behalf of the opposite party No. 1 as also Mr. A.K. Sahani, the learned Counsel appearing on behalf of the opposite party No. 2, however submitted that by reason of the impugned order, the learned court below can not be said to have committed and jurisdictional error.
According to Mr. Roy, if the application for amendment of the written statement is allowed the same would amount to overhauling of entire written statement.
The learned Counsel further submitted that if the prayer of the petitioner with regard to the amendment of the written statement is allowed, new parties have to be added and a new trial will have to be started.
The learned Counsel further submitted that the defendants at this stage have also taken up new pleas which can not be permitted to be brought on records by reason of amendment of the written statement.
In Para 1 of the proposed written statements, the defendants had prayed for that the simple suit for partition is not maintainable unless adva leerm court fee is paid thereupon.
This plea, in my opinion, is a legal plea and thus the defendants will not be prejudiced, if this amendment is allowed.
So far as the amendment sought for in Para 2 is concerned, the defendants stated that the suit was bad for non-joinder of the necessary parties.
Heirs of late Devendra Nath Bose have not been made parties. If they are now added as parties, they would be entitled to the their written statements, cross-examine the witnesses already examined and examine their own witnesses.
This amendment, therefore, cannot be allowed as this bleated stage.
In Paras 3, 5 and 6, the petitioners intend to make out a new case.
Had these pleas been taken at the earliest opportunity, the plaintiffs could have adduced their evidence controverting the allegations made therein.
Such a plea, in my opinion, can not also be allowed to brought in for the first time after a period of about nine years.
So far as amendments sought for in Paras 7 and 8 are concerned, the same are formal in nature and therefore, the same can be allowed inasmuch by allowing the same, neither a new case is made out nor any further evidence would be required to be adduced by the parties.
In Paras 9, 10 and 11, the petitioners seek to challenge their final decree passed in the aforementioned Partition Suit No. 7 of 1947 on entirely on a new ground namely, obtaining this decree by suppression of summons.
This also is impermissible in view of the fact that such a plea has been raised after a long time.
However, the amendment sought for in Para 13 is of no much consequences and thereby, in my opinion, the opposite party shall not be prejudiced.
The said amendment, therefore, should be allowed.
It is true, as submitted by Mr. Dey that an application for amendment of the written statement should be liberally considered. It is also true that an amendment in the written statement is more readily allowed than that an application for amendment of the plaint.
In this case, as noticed hereinbefore, by the application for amendment in the written statement not only formal amendments are sought for, but thereby, the plaintiffs seek to take absolutely new pleas which were not taken in their earlier written statement.
If, the application sought for by the defendants-petitioners is allowed, as noticed hereinbefore, new parties have to be added, new issues have to be framed; parties have got to be given opportunities to file their written statements, cross examining the witnesses already examined and adduced their own evidences.
It has been conceded by Mr. Dey that if the application for written statement is allowed than the petitioner will have to recall their own witnesses and would be required to bring new evidence on record.
If such an opportunity is given to the defendants-petitioner, evidently, an opportunity must be given to the opposite parties to lead evidence-contra.
Taking thus all facts and circumstances into consideration, I am of the view that except to the extent as mentioned hereinbefore the learned court below has rightly exercised his discretion in rejecting the application for amendment of the written statement filed on behalf of the defendants-petitioners.
This application is, therefore, allowed to the extent mentioned hereinbefore.
As by reason of the amendment made in the written statement, as dinated hereinbefore, no fresh evidence is required to be adduced by the parties, the learned court below shall proceed to hear the arguments of the parties on the merits of this case and in view of the fact that the suit is of the year 1982, shall make all endeavour to deliver the judgment in this case as early as possible and preferably within a period of six weeks from the date of receipt of a copy of this judgment.
Before parting with the case, it may be mentioned that the observations made by me have been made for the purpose of disposal of this Civil Revision only and I have not applied my mind with regard to the merit of this case.
There can not be any doubt that the learned Trial Court shall proceed to dispose of the case on the basis of the pleadings of the parties as also the evidence adduced on their behalf and on the basis of the material which have been brought on records without in any way being prejudiced by this judgment.
However, in the facts and circumstances of the case, there will be no order as to costs.