FULMATI KUER Vs. DHANESHWARI DEVI

JUDGEMENT

(1.) Present petition under article 227 of the Constitution of India has been filed by the petitioner-appellant for quashing/ setting aside the order dtd. 30/8/2013 (Annexure 4) passed by District Judge-IV, Palamau at Daltonganj, in Title Appeal No. 26 of 2011 whereby and whereunder the petition dtd. 27/6/2013 (Annexure 2) filed by the petitioner under Order VI Rule 17 read with Ss. 151 and 153 of the Code of Civil Procedure has been rejected.

(2.) The petitioner-plaintiff has instituted Title Suit No. 98 of 2002 (Annexure 1) for declaration of right, title and interest in respect of the suit scheduled property and also for injunction which has been dismissed by learned Civil Judge, Junior Division, Palamau on merits on contest. The petitioner-plaintiff assailing the impugned Judgement and decree passed by learned Munsiff, Palamau, dtd. 24/5/2011 has filed the Title Appeal No. 26 of 2011 which was admitted on 12/7/2011 and pending for hearing. In the meantime petitioner/appellant filed an application under Order VI Rule 17 read with Sec. 151, 153 CPC proposing some amendments in the plaint. The respondents filed their rejoinder opposing such prayer made by the petitioner/appellant. After hearing the parties the impugned order was passed mainly on the grounds that if the proposed amendment is allowed to be incorporated in the plaint, it would change the nature and character of the suit and require De Novo trial of the suit, which in the facts and circumstances of the case is not permissible.

(3.) Assailing the impugned order, learned counsel for the petitioner has submitted that the learned court below has rejected the petition filed under Order VI Rule 17 CPC only on flimsy grounds, without recording any finding as to how the basic structure of the suit is changed through the proposed amendment rather the proposed amendment is only of formal in nature and sought for incorporation in the plaint with a view to effective decision of the controversy involved in this suit between the parties and prevent multiplicity of litigation and it is not detrimental in any manner to the interest of defendants/ respondents, who may be compensated in terms of money. The proposed amendment is explanatory of the background under which the suit property was acquired and possessed by the ancestors of the plaintiff, which has been inherited by her. It is further submitted that the plaintiff being an illiterate rustic village women, could not engage a competent lawyer. She narrated about her case and also submitted all relevant documents but due to improper drafting and not bringing all the materials and documents the plaintiff lost her case at trial court. Thereafter, she engaged a lawyer at the appellate stage who advised her for amendment in the plaint. Hence, there was no deliberate inaction or negligence on the part of the plaintiff in seeking the proposed amendment after commencement of the trial. It is further argued that proposed amendment of plaint is necessary to finally and effectively adjudicate the real dispute between the parties, which may be allowed at the appellate stage also in order to avoid further litigation. No question of delay or limitation arises when misdescription of the name of the original plaintiff or suit property arises in a particular suit. If the proposed amendment is not allowed setting aside the impugned order the plaintiff shall suffer irreparable loss in comparison to the defendants who have no basis of their claim over the suit property.