PRABODH KUMAR TIWARY Vs. RAKESH KUMAR TIWARI

JUDGEMENT

(1.) Heard Mr. R.N. Sahay, learned senior counsel appearing for the petitioner and Mr. Shiv Narayana Singh along with Mr. Pran Pranay, learned counsel appearing for the opposite party no. 1, who have appeared suo motu.

(2.) This petition has been filed under Article 227 of Constitution of India for setting-aside the order dtd. 11/4/2025 passed in Miscellaneous Civil Application No. 19 of 2025 by the learned District Judge-III, Deoghar, arising out of Civil Appeal No. 82 of 2024, whereby, the learned Court has been pleased to reject the prayer regarding correction in the genealogical table to incorporate the name of Kunti Devi, the first wife of Sahdeo Tiwary and the mother of this petitioner in the plaint of Title (Partition) Suit No. 497 of 1997.

(3.) Mr. R.N. Sahay, learned senior counsel appearing for the petitioner submits that the Title Partition Suit No. 497 of 1997 was instituted by the plaintiff/petitioner for a decree for partition for allotment of entire share to the plaintiff in Schedule-A and half share in Schedule-B and C after getting in carved out through process of court and for appointment of receiver and for cost of suit for which the plaintiff is legally entitled. He further submits that said suit was on contest decreed in favour of the petitioner/plaintiff vide judgment and decree dtd. 26/4/2024 and 9/5/2025 respectively. He also submits that during the proceeding of trial, an amendment petition was filed by the petitioner under Order VI Rule 17 of the CPC which was registered M.C.A. No. 171 of 2024 and after hearing the parties, the learned Court has been pleased to allow the amendment petition vide order dtd. 19/4/2024. He submits that however inadvertently amendment No. VII was not carried by the petitioner in the plaint and decree has been passed and that was not carried out in the decree. He submits against the said judgment and decree, the defendants/opposite parties herein preferred the Civil Appeal No. 82 of 2024. He further submits that in course of examining the record of the appeal, it was found that amendment No. VII, allowed by the learned Trial Court, has not been incorporated in the plaint and in view of that, the petition has been filed under Order VI Rule 17 read with Rule 18 of the CPC before the learned first Appellate Court and the learned Court has been pleased to reject the same. He submits that inadvertently that has not been incorporated in the plaint and formal amendment was sought to be carried at the appellate stage and in view of that, the learned first Appellate Court has erred in rejecting the said petition. He relied upon the judgment passed in the case of Dwarika Prasad (D), through LRs v. Prithvi Raj Singh reported in 2024 SCC OnLine SC 3828. Paragraphs 9 and 10 of the said judgment read as under: