NAWAB SAH ALIAS MD NAWAB ALL Vs. MUSTAFA

JUDGEMENT

(1.) I .A. no. 1616 of 2002 has been filed by the respondents under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint in Title Suit no. 4 of 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 respondents -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 be 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 amendedment was sought in the court below regarding some modification in respect of Schedule -ll and such amendment was allowed by the court below but therein place of Md. Mustafa by mistake Md. Amirul Sah was mentioned although all those lands were in possession of Md. Mustafa and the same has been sought to be corrected. But when such amendment was allowed and corrections were made in the plaint it appears that due to inadvertance or by some person there was penning through some items which were never amended. Those have been specifically mentioned in paragraph -9 of the petition itself. There is also a prayer for amendment of the prayer portion regarding possession and for which the plaintiff -respondents have undertaken to pay ad valorem court fee. It should be mentioned here that 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 allowed 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 to be paid. I do not find there 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.

(2.) 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 1959 (Patna) 121 (Doma Choudhary and ors. V/s. Ram Naresh Lal & Ors.) 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 Code of Civil Procedure 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 1978 (Patna) 339 (Bajrang Rai & Ors. V/s. Ismail Mian & Ors.). Then his submission is that the prayer for specific possession barred by limitation is a matter of adjudication. On the face of it, it cannot be said so and in that way, 2000(4) PLJR 545 (Om Prakash V/s. Smt. Radhika Devi & Ors.) has got no application. The third objection is with regard to proviso as laid down under Order 6 Rule 17 of the Code of Civil Procedure 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.

(3.) 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 Code of Civil Procedure 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.