MAHESH CHAND SIDH Vs. KUMAR SATYAM

JUDGEMENT

(1.) The present civil miscellaneous petition has been filed for setting aside the order dtd. 7/12/2016 passed by learned Sub Judge VIII, Motihari in Title Suit No. 409 of 2015 whereby and whereunder the learned Sub Judge allowed the petition dtd. 9/9/2016 filed by the respondent/defendant under Order 6 Rule 17 of the Code of Civil Procedure (in short "the Code") for amendment in the written statement.

(2.) Briefly stated, facts of the case, as it appears from the record, are petitioner is plaintiff of Title Suit No. 409 of 2015 and has filed the suit for declaration of sale deed dtd. 17/1/2012 to be forged, fabricated and illegal and for setting aside the same declaring the right and title of the plaintiff over the suit property apart from other reliefs. The plaintiff claimed the suit property to be his ancestral property in respect of which a lease deed was executed by the father of the plaintiff in favour of the father of the respondent for twelve years. For non-compliance of the terms of the lease deed the plaintiff, his father and his brothers filed a Title Suit bearing no. 37 of 1991 against the defendant. During the pendency of the title suit, the lease deed came to an end. The defendant of the said suit asked the plaintiff to transfer the portion of the suit property in favour of the defendant. The plaintiff later on agreed to transfer some portion of the suit land in favour of the defendant. The plaintiff executed a sale deed dtd. 17/1/2012 in favour of the defendant without any consideration money. It was in terms of the said sale deed that after the plaintiff would get title and possession in the Title Suit No. 37 of 1991 then only the sale deed would become effective. However, the defendant by applying pressure on the plaintiff, got incorporated the fact about consideration money being paid though no consideration amount was ever paid. It further transpires that the defendant made his sister file an appeal against the judgment and decree of Title Suit No. 37 of 1991 in order to again pressurize the plaintiff to transfer certain portion of land in favour of his sisters and when the plaintiff refused, the defendant started fencing the suit property forcibly. On the aforesaid facts, Title Suit No. 409 of 2015 was filed. The defendant/respondent joined the issue with the plaintiff. The defendant admitted the lease deed executed by the father of the plaintiff in favour of his father. The defendant denied that the sale deed dtd. 17/1/2012 was executed without payment of any consideration money. In fact no sale deed was executed on 17/1/2012 and the defendant has been coming into possession of the land on the basis of sale deed executed on 24/10/2011. It also appears that during pendency of the Title Suit No. 37 of 1991, a written agreement was entered into between the plaintiff and the defendant on 24/10/2011. According to the compromise document, the plaintiff executed the sale deed dtd. 24/10/2011 in favour of the defendant and it was incumbent upon the defendant not to oppose the passing of the decree in Title Suit No. 37 of 1991. According to the terms of agreement the plaintiff got the sale deed registered. Further case of the defendant is that the father of the plaintiff was in need of the money and due to this fact, the plaintiff requested to sell the land of Schedule 1 in favour of the defendant. For the consideration amount of Rs.3,00,000.00 the plaintiff executed and registered the sale deed. The defendant further claimed that he was in possession of the suit land since execution of lease deed dtd. 9/6/1981 and after execution of the sale deed, the defendant has been coming into possession of the suit property and jamabandi was created in his favour and the defendant also started getting the revenue receipts. Except for property of Schedule 1 the plaintiff has been in title and possession of the rest of the suit property after Title Suit No. 37 of 1991 was decreed. At the same time, defendant has been having title and possession over the Schedule 1 property of the plaint. The possession of the defendant of Schedule 1 property was also found in a proceeding under Sec. 144 of the Cr.P.C. in Case No. 1056M of 2015 by the learned Sub Divisional Magistrate. During pendency of the suit and before framing of the issues, an amendment application has been filed by the defendant to make amendment in paragraph no. 16, 17 and 18 of his written statement and a rejoinder to the same was filed on behalf of the plaintiff. The learned trial court vide order dtd. 7/12/2016 allowed the amendment application which is under challenge before this Court in the present civil miscellaneous case.

(3.) Learned counsel for the petitioner submits that the impugned order is perverse, illegal and arbitrary and hence, the same is not sustainable. While allowing the amendment petition filed by the defendant/respondent, the learned trial court did not consider that admission made in the written statement were sought to be withdrawn which would cause severe prejudice to the petitioner. Learned counsel further submitted that the amendment is of such nature that it would cause prejudice to the petitioner and cannot be compensated in terms of cost. The amendment has the effect of depriving the plaintiff a right which has accrued to him on account of admission made in the written statement. The learned counsel, further, submitted that the bare perusal of the petition dtd. 9/9/2016 filed for amendment in the written statement makes it clear that amendment sought by the defendant/respondent has changed the entire written statement. The whole case of the defendant has been narrated in paragraph no. 16 to 18 and now the defendant wants to delete the same and substitute these paragraphs with entirely new facts with new averments. The Hon'ble Supreme Court, in a large number of cases, has held that when an amendment seeks to withdraw the statement made earlier in the written statement such an amendment could not be allowed. Such withdrawal of admission by way of amendment is not permissible. Thus, the learned counsel submitted that the amendment sought by the defendant/respondent are not just and proper and would result in causing prejudice to the plaintiff/petitioner and the learned trial court, committing illegality, has passed an erroneous order and is fit to be set aside.